[Cite as State v. Beckwith, 2014-Ohio-2877.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :        OPINION

                 Plaintiff-Appellee,           :
                                                        CASE NO. 2013-A-0050
        - vs -                                 :

ANDREW F. BECKWITH,                            :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2012
CR 726.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, L.P.A., 34 South Chestnut
Street, #100, Jefferson, OH 44047-1092 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Andrew F. Beckwith, appeals his conviction of felonious

assault, following a jury trial, in the Ashtabula County Court of Common Pleas. For the

reasons that follow, we affirm.

        {¶2}     Appellant was indicted for felonious assault by causing serious physical

harm to Michael Kutner, a felony of the second degree, in violation of R.C. 2903.11.

Appellant pled not guilty and the case was tried to a jury.
      {¶3}   Michael Kutner testified that on September 25, 2012, at about 11:00 p.m.,

he went to the Town Tavern, a restaurant/bar in Andover, Ohio, with his roommate, Ed

Yasher, and Yasher’s girlfriend, to play pool, play music on the jukebox, and to have a

few beers.

      {¶4}   Kutner said that, sometime later, he saw appellant enter the bar with a few

of his friends. Kutner had previously met appellant through a past girlfriend, Jennifer

Alexander, who Kutner dated from October 2011 through July 2012. Kutner said that he

and appellant did not get along due to an argument they had over Alexander when they

started dating. Kutner said that after he and Alexander broke up, he spoke to appellant

a few times, but they never resolved the problem they had with each other.

      {¶5}   Near midnight, while Kutner was playing pool at the bar, Tim Ballentine,

who Kutner knew from the area, walked over to Kutner and started talking to him. While

they were talking, appellant approached them. Appellant grabbed Kutner’s pool stick

out of his hand, threw it across the pool table, and started shouting about Alexander and

accusing Kutner of talking about him.

      {¶6}   Kutner testified he told appellant that he, Kutner, did not know what

appellant was talking about and that he was just there to play pool with his roommate.

Appellant then punched Kutner in the face. Kutner was taken to the emergency room at

St. Joseph Hospital in Andover. After it was determined that Kutner required surgery,

he was taken to St. Elizabeth Hospital in Youngstown.

      {¶7}   Kutner said that, due to appellant’s attack, his jaw was broken, his sinus

cavity was broken, and he lost one of his front teeth. In surgery, three plates had to be

inserted in his face. Also, his mouth was wired shut for one month. Kutner said that




                                           2
one year after this attack, he still experiences severe pain in his jaw every day. Kutner

said he requires dental reconstruction because several teeth on the bottom left side of

his mouth have been damaged. He has also developed painful arthritis in his face and

jaw.

       {¶8}     Kutner testified that, prior to this confrontation that night, he had not made

any threats against appellant or harassed him in any way. He said he did nothing to

provoke this assault. He said that at the time of the assault, his keys were on his belt

loop and he had cigarettes, a lighter, and some money, but he did not have any type of

knife on him.

       {¶9}     A video taken by the bar’s video surveillance system was identified by

Kutner and admitted in evidence. It shows Kutner still holding his pool cue engaging in

a friendly conversation with Ballentine near the pool table. The video shows appellant

walking up to Kutner while he is still talking to Ballentine. Appellant immediately grabs

Kutner’s pool stick out of his hand and throws it across the pool table. Appellant is

yelling at Kutner in an angry and aggressive manner while making large, threatening

arm movements and pointing his finger in Kutner’s face. Appellant then hits Kutner in

the chest with both open hands and Kutner falls back several feet.              Kutner steps

forward, but does not make any aggressive movements. While Kutner is talking to him,

appellant appears angry and highly agitated and punches Kutner twice in the face.

Kutner falls backwards from the punches, and appellant jumps on him and punches him

again. While Kutner is on the ground, appellant gets up, walks away, and exits the bar.

The video shows Kutner made no aggressive moves toward appellant at any time.




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       {¶10} Ed Yasher testified that on September 26, 2012, he, his girlfriend, and his

roommate, Michael Kutner, went to the Town Tavern to play pool. While Ed was talking

to some people, he noticed appellant and Kutner arguing. He said appellant punched

Kutner, who then fell backwards onto the floor. Appellant then left the bar. Yasher went

over to Kutner and picked him up. Kutner’s face was bruised and bleeding. Yasher

took him to the hospital.

       {¶11} Laurie Inman, a registered nurse at St. Joseph Hospital Emergency

Diagnostic Center in Andover, testified that on September 26, 2012, at about 1:00 a.m.,

Michael Kutner was transported to the emergency room complaining that he had been

assaulted. He had facial injuries in the mouth area and a large amount of bleeding from

his face. He was in a great deal of pain. He had a CAT scan, which revealed he had

multiple fractures to the jaw.   Nurse Inman called the Andover Police Department

reporting they had a patient who had been assaulted. Due to the severity of his injuries,

Kutner was transferred by ambulance to St. Elizabeth’s Trauma Center in Youngstown.

       {¶12} Michael Pascolini, M.D., an ear, nose, and throat specialist employed by

St. Elizabeth’s Health Center, testified that in the early morning hours of September 26,

2012, he examined Michael Kutner at the hospital. He said that Kutner was in a lot of

pain and distress from the fracture of his jaw. Kutner told him he was hit in the face and

then hit the floor.

       {¶13} Kunter had difficulty opening his mouth, which indicated a fracture of the

jaw, and a large open wound in his oral cavity caused by the breaking of the bones

inside that cavity. A CAT scan revealed Kutner sustained three fractures to the jaw, one




                                            4
to the right side of the jaw, one to the left side, and another to the back part of the jaw,

which had been pushed up toward his skull. His sinus cavity was also fractured.

       {¶14} Dr. Pascolini performed surgery to repair Kutner’s jaw. The doctor made

several incisions in the oral cavity to get to the fractures. He also had to make incisions

into the muscle to relax Kutner’s jaw in order to realign the upper and lower parts of the

jaw. He then inserted screws into both parts of the jaw and wired them together to hold

the jaw in place. Kutner’s jaw had to be immobilized for four weeks while the bone was

healing. Dr. Pascolini also inserted three titanium plates in Kutner’s jaw to stabilize the

bones affected by the fractures.     After the bone healed, Dr. Pascolini performed a

second surgery to remove the screws and wire from Kutner’s jaw so he could once

again move his mouth. The plates in Kutner’s jaw remain in place and are permanent.

       {¶15} Sergeant Christopher Baker of the Andover Police Department testified

that on September 26, 2012, at about 2:00 a.m., Nurse Inman at St. Joseph’s

emergency room called him. She said there was an assault that night at the Town

Tavern and the victim was in the emergency room. She requested a police officer to

meet him.

       {¶16} Sergeant Baker said he went to St. Joseph’s emergency room. He met

Kutner and saw he was bleeding from the mouth. One of his teeth had been knocked

out of place and Sergeant Baker could see his gum line under the tooth. Kutner had

difficulty speaking due to the injuries to his mouth.      He provided the name of the

assailant.




                                             5
      {¶17} Sergeant Baker said that in the course of his investigation, he interviewed

Ed Yasher, Sandra Soderstrom, and Kutner, but that no one else who had been at the

Town Tavern that night ever came forward to say they had witnessed the incident.

      {¶18} Sergeant Baker said that later that night, he met with the manager of the

Town Tavern.     The sergeant is familiar with the bar and knew they have a video

surveillance system consisting of eight video cameras set up inside the bar. He asked

to see the video of the assault in the bar that night and the manager showed it to him.

      {¶19} After the state rested its case, the defense presented several witnesses

who testified on appellant’s behalf. Sandra Soderstrom, bartender at the Town Tavern,

testified that on September 26, 2012, she saw Kutner talking to appellant at the pool

table. She said appellant took the pool stick from Kutner and threw it. She heard them

arguing about a girl. Appellant then hit Kutner. She saw Kutner fall to the floor and she

picked him up. She said that, before seeing them talking to each other at the pool table,

she did not see any contact between them that night.

      {¶20} Jerry Connolly testified he knows appellant from the bar and met him there

several times. He said that before Kutner was attacked, Kutner brought him into the

bathroom and said he would have to take appellant’s side or his side. Connolly also

said he had previously seen a clip in Kutner’s pocket, which he assumed was attached

to a knife in Kutner’s pocket, but he never saw a knife because Kutner never took it out.

      {¶21} Katie French, a longtime friend of appellant, said that appellant has a

reputation for being peaceful, but that she has previously seen him involved in a fight

over a girl in another bar. In contrast, she said Kutner does not have a reputation for

being peaceful, but added that he can be “nice” and has always been nice to her.




                                            6
       {¶22} Tim Ballentine, another longtime friend of appellant, testified that on

September 26, 2012, he was at the Town Tavern with appellant. Ballentine said that at

some point while he and appellant were sitting at the bar, Kutner walked passed them

and said to appellant that he was “going to beat [his] ass tonight with a pool stick.” He

said that appellant did not respond to this, and he and appellant just continued relaxing,

talking to each other, and having a good time. Ballentine said he later approached

Kutner, told him he was not to assault appellant, and then walked away.

       {¶23} However, to the contrary, the video shows Kutner and Ballentine engaging

in a friendly conversation over an extended period and that Ballentine was still talking to

Kutner when appellant interrupted them, grabbed the pool stick from Kutner’s hand, and

threw it across the pool table.

       {¶24} Ashley Smith, another close friend of appellant, testified that a few weeks

before the assault on Kutner, she was at the Town Tavern when Kutner offered to pay

her $20 to punch appellant in the face.

       {¶25} Jennifer Alexander, a close friend of appellant, testified she was Kutner’s

girlfriend from October 2011 to July 2012. She said that in about January 2012, she

saw Kutner go to appellant’s car and remove his car antenna. She said she never saw

Kutner do anything else to appellant and she never saw Kutner threaten appellant. She

also said that while she and Kutner were dating sometimes he carried a knife.

       {¶26} Appellant testified he met Kutner the same night Kutner met Alexander.

He said he and Kutner had a disagreement and, ever since, they have not gotten along.

He said he believes that in the past, Kutner has slashed his tires and tried to run him off




                                            7
the road, but admitted he never witnessed Kutner doing any of these things and he

never reported any of these incidents to the police.

      {¶27} Appellant said that, prior to September 26, 2012, Kutner often made

negative comments about him in public places that were not directed to him but were

loud enough for him to hear, and he considered this to be harassment.

      {¶28} Appellant said that in the past he saw the shape of a knife in Kutner’s

pocket and assumed it was a knife, although he never saw a knife on Kutner.

      {¶29} Appellant said that on September 26, 2012, while he was seated at the

bar, Kutner walked by him and said he was going to “whoop [his] ass with a pool stick.”

However, although eight video cameras were set up in the bar, no video was introduced

showing that Kutner had any prior encounters with appellant before the attack.

      {¶30} Appellant said that as a result of this threat, about one hour later, he

walked over to Kutner “to confront him.” Appellant told Kutner this needs to stop now

and he took Kutner’s pool stick from him and threw it. Appellant said he then pushed

Kutner because he felt threatened since Kutner was, according to him, fumbling around

in his pocket and Kutner was known to carry a knife.

      {¶31} Appellant said that when Kutner got up, he reached into his pants pocket

and pulled out an object that may have been a knife and then put it in the pocket of his

sweatshirt. As a result, appellant punched Kutner so hard he fell to the floor. Appellant

admitted the video does not show Kutner reaching into his pocket, taking any object out

of it, or placing any object in his sweatshirt pocket. In addition, on cross-examination,

appellant admitted that Kutner never lifted his hand to strike him and did not have

anything in his hands when appellant punched him.




                                            8
       {¶32} The jury found appellant guilty of felonious assault. The court referred the

matter for a presentence report. That report shows that appellant is an alcoholic and

admitted he was under the influence of alcohol at the time of the offense. Further, in

2009, appellant was diagnosed as bipolar with mood disorder and prescribed

medication by a psychiatrist. However, he voluntarily stopped treatment and stopped

taking his medication.

       {¶33} Appellant told the court that he was ashamed of his actions that night and

that he knows putting his hands on people is never the answer. He admitted that he

was drunk during this incident; that “alcohol had a great bearing on [his] judgment that

night;” and that he has an alcohol problem. The trial court noted that, due to appellant’s

assault, Kutner suffered serious injuries and will have painful arthritis in his jaw for the

rest of his life. Further, the court noted that appellant was the aggressor. He got off his

bar stool, walked half the distance of the bar to the pool area, and confronted Kutner.

Appellant took the pool cue away from him.         While the victim was talking to him,

appellant was very animated, moving his arms and threatening. Appellant then pushed

Kutner. After Kutner got up, appellant punched him two or three times with such force

that it broke his jaw and sinus cavity. The court noted that, while appellant said Kutner

was fiddling with his pockets and he was known to carry a knife, the video clearly shows

his hands never touched his pockets. The court noted that, despite appellant’s history

with Kutner over Alexander, words never justify an assault.          The court sentenced

appellant to three years in prison.

       {¶34} Appellant appeals his conviction, asserting two assignments of error. For

his first assigned error, he alleges:




                                             9
       {¶35} “The repeated instances of prosecutorial misconduct affected defendant-

appellant’s substantial right to a fair trial in violation of his Sixth and Fourteenth

Amendment rights.”

       {¶36} The test for prosecutorial misconduct is whether the remarks of the

prosecutor were improper and, if so, whether they prejudiced the defendant. State v.

Triplett, 11th Dist. Ashtabula No. 2013-A-0018, 2013-Ohio-5190, ¶76, citing State v.

Smith, 14 Ohio St.3d 13, 15 (1984).

       {¶37} “‘Generally, prosecutorial misconduct is not a basis for overturning a

criminal conviction, unless, on the record as a whole, the misconduct can be said to

have deprived the defendant of a fair trial.’” State v. Dudas, 11th Dist. Lake Nos. 2008-

L-109 and 2008-L-110, 2009-Ohio-1001, ¶26, quoting State v. Hillman, 10th Dist.

Franklin Nos. 06AP-1230 and 07AP-728, 2008-Ohio-2341, ¶26.               “An appellant is

entitled to a new trial only when a prosecutor asks improper questions or makes

improper remarks and those questions or remarks substantially prejudiced appellant.”

State v. Bruce, 8th Dist. Cuyahoga No. 70982, 1997 Ohio App. LEXIS 4334, *19 (Sept.

25, 1997). “In analyzing whether an appellant was deprived of a fair trial, an appellate

court must determine whether, absent the improper questions or remarks, the jury

would have found the appellant guilty.” Id. The focus of that inquiry is on the fairness of

the trial, not the culpability of the prosecutor. Id.

       {¶38} Further, allegations of prosecutorial misconduct which are not raised

below are waived on appeal, absent plain error. Dudas, supra, at ¶33.

       {¶39} The general rule regarding waiver is that “‘an appellate court will not

consider any error which counsel for a party complaining of the trial court’s judgment




                                               10
could have called but did not call to the trial court’s attention at a time when such error

could have been avoided or corrected by the trial court.’” State v. Awan, 22 Ohio St.3d

120, 122 (1986), quoting State v. Childs, 14 Ohio St.2d 56 (1968), paragraph three of

the syllabus. Likewise, “‘[c]onstitutional rights may be lost as finally as any others by a

failure to assert them at the proper time.’” Awan, supra, quoting Childs, supra, at 62.

Such challenge must be raised at the first opportunity and, in a criminal prosecution, this

means in the trial court. Awan, supra.

       {¶40} Crim.R. 52(B) allows us to correct “[p]lain errors or defects affecting

substantial rights” that were not brought to the attention of the trial court. However,

“‘[p]lain error does not exist unless it can be said that but for the error, the outcome of

the trial would clearly have been otherwise.’” Dudas, supra, quoting State v. Moreland,

50 Ohio St.3d 58, 62 (1990).

       {¶41} The appellate court’s decision to correct a plain error is discretionary and

should be made ʽ‟with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.’” State v. Barnes, 94 Ohio St.3d 21, 27

(2002), quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶42} While appellant argues on appeal that the prosecutor engaged in certain

instances of prosecutorial misconduct, he never objected to any of them below. As a

result, appellant waived any challenge based on prosecutorial misconduct unless the

conduct rose to the level of plain error.

       {¶43} First, appellant argues the prosecutor improperly questioned Yasher

concerning whether appellant had vandalized Kutner’s property and had threatened and

harassed him. However, to the contrary, the prosecutor merely asked Yasher what




                                            11
appellant and Kutner had told him about acts of vandalism, threats, and harassment. In

light of appellant’s accusations against Kutner, we perceive no error in such question.

       {¶44} Next, appellant challenges the prosecutor’s question to Sergeant Baker

concerning whether he had any information regarding appellant’s peacable nature. This

question was simply aimed at impeaching the testimony of appellant’s friends that

appellant was a peaceful person. In any event, when Sergeant Baker was about to say

what he had been told, defense counsel objected and the court sustained the objection

as eliciting hearsay. Thus, any error in this question was effectively cured.

       {¶45} The prosecutor next asked Sergeant Baker if anyone had reported any tire

slashings or car chases, and the officer said there were no such reports.              The

prosecutor obviously asked this question to impeach appellant’s trial testimony that

Kutner had engaged in these activities.

       {¶46} Next, appellant argues the prosecutor improperly elicited from Sergeant

Baker his testimony that appellant chose not to make a statement. Appellant’s counsel

did not object to the prosecutor’s question. Instead, counsel allowed this testimony to

come in, and he used it as a basis to attack the reliability of Sergeant Baker’s

investigation. Subsequently, defense counsel questioned appellant during his direct

testimony concerning why he chose not to make a statement. Through his questioning,

defense counsel sought to show that appellant was always willing to cooperate and that

Sergeant Baker had numerous opportunities to ask him to give a statement, but

repeatedly delayed in doing so. While the prosecutor’s initial question was improper,

defense counsel’s failure to object to it, coupled with appellant’s direct testimony on this

subject, removed any potential for prejudice.




                                            12
      {¶47} In any event, the evidence here was overwhelming. The entire incident

was caught on video. Despite the conflicting version of events offered by appellant’s

friends, the video shows that Kutner did not do anything to provoke the assault; he did

not put his hands in his pockets before being hit; and appellant was the aggressor. The

trial court’s comments at sentencing regarding the video are apropos:

      {¶48} The defendant during the trial asserted a defense of self-defense. *

             * * [B]ut this tavern had a security system with eight cameras in it;

             and the Jury actually viewed the crime in this case, because this

             whole situation was caught on tape from beginning to end. There is

             no doubt about what happened. This court did not have to rely on

             the statements of six or eight people that might have been sitting in

             there drinking all night, six or eight people that had friends on one

             side of this fight or the other. This Jury was there. They saw what

             happened, and what happened was clear.

      {¶49} * * *

      {¶50} But it’s clear, Mr. Beckwith, you were the aggressor in this. You got

             off your bar stool, you walked about half the distance of the bar

             down to the pool area. You confronted the victim in this case. You

             took a pool cue away from him. He talked to [you]. You were very

             animated, moving your arms and threatening. Finally you pushed

             him off the camera. He got up. He came back on to the camera.

             He was standing there.




                                          13
       {¶51} Your testimony was that he was fiddling with his pockets and he

              was known to carry a knife and you thought you were in harm’s

              way. You could see on this tape, his hands never touched his

              pockets.

       {¶52} * * *

       {¶53} [H]e didn’t come anywhere near you, and you came back, sought

him out, confronted him, took his pool cue away, pushed him, and then you

punched him two or three times, then he went off the camera.

       {¶54} In light of the overwhelming evidence of appellant’s guilt, we cannot say

that, but for the few isolated instances of the state’s alleged improper questions, the jury

would not have found him guilty. We therefore do not discern plain error.

       {¶55} Appellant’s first assignment of error is overruled.

       {¶56} For appellant’s second assigned error, he contends:

       {¶57} “The trial court erred to the prejudice of the defendant-appellant when it

returned a verdict of guilty against the manifest weight of the evidence.”

       {¶58} Appellant argues that, while his conviction may have been supported by

sufficient evidence, he is entitled to a new trial because the evidence offered by the

state was so lacking in credibility that no reasonable jury would have found him guilty of

felonious assault.

       {¶59} A challenge to the weight of the evidence challenges the credibility of the

evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).                   If, on

weighing the evidence, the jury finds the greater amount of credible evidence sustains

the issue that a party seeks to establish, that party will be entitled to its verdict. Id. Thus,




                                              14
a court reviewing the manifest weight observes the entire record, weighs the evidence

and all reasonable inferences, considers the credibility of witnesses, and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way and created

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

trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS

5862, *14-*15 (Dec. 23, 1994).

       {¶60} “The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.” State

v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). Hence, the role of a reviewing court

is to engage in a limited weighing of the evidence introduced at trial in order to

determine whether the state appropriately carried its burden of persuasion. State v.

Brown, 11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶52, citing Thompkins,

supra, at 390.

       {¶61} Appellant argues that because he testified Kutner told him he was going to

kick his ass and, after appellant pushed Kutner, appellant allegedly saw Kutner reach

into his pocket and thought Kutner had a knife, he reasonably believed he had the right

to strike Kutner in order to defend himself.      However, appellant ignores Kutner’s

testimony that he never threatened appellant that night and that he did not have a knife.

Moreover, appellant ignores the fact that, as he conceded at trial, the video does not

show Kutner put his hand in his pocket. Significantly, appellant also ignores the fact

that the video, which photographed the entire incident, does not show Kutner took any

aggressive action, even after appellant grabbed his pool cue away from him and pushed

him.




                                           15
       {¶62} As the trier of fact, the jury was entitled to find Kutner’s testimony to be

more credible than appellants’ witnesses, which the jury obviously did. Based upon our

review of the record, we cannot say that in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.

       {¶63} Appellant’s second assignment of error is overruled.

       {¶64} For the reasons stated in this opinion, appellant’s assignments of error

lack merit and are overruled. It is the judgment and order of this court that the judgment

of the Ashtabula County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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