[Cite as State v. Garner, 2020-Ohio-4234.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2019-CA-10
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-122
                                                   :
 STEPHEN A. GARNER, JR.                            :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 28th day of August, 2020.

                                              ...........

JAMES D. BENNETT, Atty. Reg. No. 0022729, Darke County Prosecutor’s Office, 504
South Broadway, Greenville, Ohio 45331
      Attorney for Plaintiff-Appellee

RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475
     Attorney for Defendant-Appellant

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

HALL, J.
                                                                                           -2-


          {¶ 1} Stephen A. Garner, Jr. appeals his convictions for felonious assault, assault,

and vandalism. He contends that the convictions must be reversed because the State did

not present sufficient evidence to support them. He further contends the convictions were

against the manifest weight of the evidence. We disagree with both contentions, so we

affirm.

                           I. Factual and Procedural Background

          {¶ 2} On May 25, 2018, Garner was indicted on 19 counts related to contaminating

the Darke County Jail with methamphetamine: three counts of felonious assault,1 twelve

counts of assault,2 and one count each of tampering with evidence,3 illegal conveyance

of weapons or prohibited items onto grounds of specified governmental facility, 4

aggravated possession of drugs,5 and vandalism (cost of damages $7,500 to $150,000).6

Garner pleaded guilty to tampering, illegal conveyance, and possession. The remaining

charges were tried to a jury, which was presented with evidence showing the following

facts.




1 Counts 1 and 2 charged violations of R.C. 2903.11(A)(1), first-degree felonies; Count
3 charged a violation of R.C. 2903.11(A)(1), a second-degree felony.
2  Counts 4, 5, 6, 7, and 8 charged violations of R.C. 2903.13(B) as fourth-degree
felonies; Counts 9, 10, 11, 12, 13, 14, and 15 charged violations of R.C. 2903.13(B) as
fifth-degree felonies.
3   Count 16 charged a violation of R.C. 2921.12(A)(1), a third-degree felony.
4   Count 17 charged a violation of R.C. 2921.36(A)(2), a third-degree felony.
5   Count 18 charged a violation of R.C. 2925.11(A), a third-degree felony.
6 Count 19 charged a violation of R.C. 2909.05(B)(2), a fourth-degree felony because
the cost of the damage was alleged to be $7,500 to $150,000.
                                                                                       -3-


      {¶ 3} Around 12:30 p.m. on April 17, 2018, Garner was brought to the Darke

County Jail. (The reason is not in the record and is not relevant.) As he entered, Garner

said that he had no drugs or other contraband on him, and he was taken to the inmate

processing room by Deputy Sheriff Christine Buchert. After processing him, Buchert

asked Corrections Officer Jose Anglero to take Garner to the adjoining locker room and

have him change into a jail uniform.

      {¶ 4} While Anglero watched, Garner took off his street pants and pulled on jail

pants. As he did so, Officer Anglero saw something fall to the floor from Garner’s rectal

area. Garner dropped the jail shirt on the floor, and retrieving it, he also picked up the

objects—several small baggies. Anglero immediately radioed for assistance. Deputy

Buchert entered the locker room, and Anglero told her that Garner had drugs in his hand.

Buchert ordered Garner to drop the drugs, but he refused, stuffing the baggies in his

mouth instead. Buchert ordered him to spit them out. Captain Ted Bruner then entered

the locker room. Garner eventually spit the baggies into his hand, and Bruner ordered

him to drop the baggies and slide them over to him. Garner asked Bruner “if this is going

to be a felony,” and Bruner said that he did not know. Garner then “flipped through” the

four or five baggies in his hand and turned around, resting his elbows on a file cabinet

with his hands clasped together, like he was contemplating what to do. After a few

seconds, Garner turned back toward the officers and moved his hand toward Captain

Bruner, as if to hand him the baggies. Suddenly, Garner brought up his other hand, ripped

the baggies open, and threw the open baggies down in Bruner’s direction. The baggies

and some of their powdery contents hit Captain Bruner’s hand. After subduing Garner,

Deputy Buchert and Officer Anglero brought him to holding cell number two. Buchert
                                                                                         -4-


asked Garner what the substance was, and he replied that it was just salt. When Anglero

asked him what it was, Garner retorted: “You’ll find out.” (Tr. 261). Captain Bruner ordered

Deputy Buchert to photograph the scene, while he contacted a drug-unit detective. Bruner

then ordered everyone to resume their duties.

       {¶ 5} Not long after, the three officers involved began feeling unwell. Deputy

Buchert was doing her jail check when she felt lightheaded and dizzy and felt some

tingling and numbness. Her heart was racing, and she felt nauseated. Collapsing against

a wall, Buchert felt that her life was in danger and called for help. Corporal Tim Nichols

found her and helped her to the medical office, where Buchert vomited. When the drug-

unit detective arrived, Captain Bruner went to the medical office. He too had begun to feel

unwell. He had a headache and felt that his blood pressure had increased. He also felt a

tingling sensation throughout his body, heat radiating from his chest, and an overall

general weakness come over him. Around the same time, Officer Anglero too began

suffering elevated blood pressure, nausea, and lightheadedness. None of the three

officers could continue working. An ambulance was called, and all three were transported

to the local hospital.

       {¶ 6} When the officers arrived at the hospital, they were treated for possible drug

exposure. Each officer was decontaminated and given a urine test for methamphetamine.

The tests came back negative. After a couple of hours, the officers’ symptoms began to

subside, and they were released to go home. By the next day, all three had recovered.

But later that day, Captain Bruner experienced the same symptoms as he had the day

before and returned to the hospital for treatment.
                                                                                          -5-


       {¶ 7} Corporal Nichols was never in the locker room, but not long after helping

Deputy Buchert to the medical office, Nichols too began feel his blood pressure increase

and a tingling in his face and mouth. He also had a headache. Nichols felt unable to work,

and another deputy drove him to the hospital for treatment. After a couple of hours, he

was released to go home. Although Nichols was not scheduled to work the next day, he

was called in because other officers at the jail were unwell and were seeking treatment

at the hospital. At some point during the day, Nichols, like Bruner, began experiencing

the same symptoms as he had the day before—elevated blood pressure, headache, and

tingling sensations -- so he returned to the hospital for treatment and then went home.

       {¶ 8} Two witnesses from the hospital testified. The hospital’s lab director, Matt

Kiehl, testified about the methamphetamine test. He explained that the methamphetamine

test returns a positive result only when the level of methamphetamine in the urine reaches

a certain threshold, so a negative result did not necessarily mean that the drug was not

present. The emergency-room physician who treated the officers also testified. Dr. Robert

Girman testified that the officers were brought in for possible drug exposure. Based on

their symptoms, it was his opinion that the officers had been exposed to

methamphetamine or another stimulant. He explained that symptoms develop within

minutes of inhaling such a drug and that exposure could incapacitate a person such that

the person would be unable to work. Dr. Girman agreed with the lab director that a

negative urine test did not mean no exposure. Dr. Girman said a urine test is helpful only

if it is positive. He noted that the officers’ symptoms had the “[p]otential to be serious.”

(Tr. 327).
                                                                                        -6-


       {¶ 9} The day after Garner threw the open baggies of meth, several corrections

officers (Corporal Nichols and Captain Bruner among them) began experiencing

symptoms of methamphetamine exposure and were taken to the hospital. No inmate

experienced symptoms. Testing showed that the substance in the baggies was in fact

methamphetamine. The decision was made to shut down the entire jail for

decontamination. A bio-hazard cleanup company and various other contractors were

hired to decontaminate and clean the jail. They swabbed various areas of the jail, and the

test results showed methamphetamine in the booking area, the locker room, and holding

cell number two. The air handler that served the administrative and processing area of

the jail was also decontaminated; parts of it were cleaned, but the duct work could not be

cleaned and was replaced. The jail was shut down for around 24 days. The Darke County

Auditor, Carol Ginn, testified that the total cost of the decontamination was $123,181.50.

The State presented two exhibits showing that $50,100.00 was spent to house the

inmates elsewhere and $73,081.50 was paid to vendors. Ginn testified that a “good

chunk” of the amount was reimbursed to the county by the State of Ohio.

       {¶ 10} After hearing the evidence, the jury found Garner guilty on the three charges

of felonious assault and on one assault charge, the one involving Corporal Nichols. The

jury also found Garner guilty of vandalism but found that the State had not proven the

alleged cost of damages ($7,500 to $150,000), making the offense a felony of the fifth

degree rather than one of the fourth degree. As for the other assault charges, the jury

found Garner not guilty on seven of the charges, the State dismissed two, and no verdict

was rendered on two, because they were submitted as alternatives to two felonious-

assault charges. The trial court sentenced Garner to a total of six years in prison.
                                                                                          -7-


       {¶ 11} Garner appeals.

                                        II. Analysis

       {¶ 12} Garner assigns two errors to the trial court that challenge the sufficiency

and manifest weight of the evidence for his convictions of felonious assault, assault, and

vandalism:

              THE JURY VERDICT RESULTING IN THREE FELONIOUS

       ASSAULT CONVICTIONS, ONE ASSAULT CONVICTION AND A

       VANDALISM CONVICTION [WAS} NOT SUPPORTED BY SUFFICENT

       EVIDENCE.

              THE JURY VERDICT RESULTING IN THREE FELONIOUS

       ASSAULT      CONVICTIONS,         ONE     ASSAULT      CONVICTION        AND

       A VANDALISM CONVICTION [WAS] AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

       {¶ 13} Our review of these two evidentiary challenges differs. In reviewing a claim

of insufficient evidence, “[t]he 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. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “Where

reasonable minds can reach different conclusions upon conflicting evidence,

determination as to what occurred is a question for the trier of fact. It is not the function

of an appellate court to substitute its judgment for that of the factfinder. Rather, upon

appellate review, the evidence must be viewed in the light most favorable to the

prosecution.” Id. at 279.
                                                                                           -8-


       {¶ 14} A different test is used in reviewing a claim that a jury verdict is against the

manifest weight of the evidence. “ ‘The court, reviewing 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. 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

                           A. The felonious-assault convictions

       {¶ 15} Garner’s convictions for felonious assault were for violating R.C.

2903.11(A)(1), which provides that “[n]o person shall knowingly * * * [c]ause serious

physical harm to another * * *.” Garner challenges the evidence that the harm he caused

the three officers constituted “serious physical harm” and the evidence that he caused the

harm “knowingly.”

       {¶ 16} There is no dispute that Garner caused the officers physical harm. See R.C.

2901.01(A)(3) (pertinently defining “physical harm to persons” as “any injury, illness, or

other physiological impairment”). The question is whether the harm was “serious.”

“Serious physical harm to persons” is statutorily defined and has several meanings. See

R.C. 2901.01(A)(5). The relevant one here is physical harm “that involves some

temporary, substantial incapacity.” R.C. 2901.01(A)(5)(c).

       {¶ 17} The felonious assault victims were Deputy Buchert, Captain Bruner, and

Officer Anglero. Deputy Buchert testified that she felt nauseated, dizzy, and light-headed
                                                                                         -9-


and noticed tingling and numbness. She collapsed against a wall and had to be helped

to the jail’s medical office. She was unable to continue working and sought emergency

medical treatment at the hospital. Captain Bruner testified that he developed a headache,

noticed a tingling sensation, had elevated blood pressure, and felt heat radiating from his

chest. He too was unable to work and sought emergency medical treatment at the

hospital. As for Officer Anglero, he testified that he felt lightheaded and nauseated and

had elevated blood pressure. Like Buchert and Bruner, he was unable to work and sought

emergency medical treatment at the hospital. Dr. Girman, the emergency room physician

who examined the officers, testified that each of them had suffered methamphetamine

exposure.

      {¶ 18} “ ‘The degree of harm that rises to the level of “serious” physical harm is not

an exact science, particularly when the definition includes such terms as “substantial,”

[and] “temporary[.]” ’ ” State v. Bootes, 2d Dist. Montgomery No. 23712, 2011-Ohio-874,

¶ 19, quoting State v. Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996.

“ ‘Serious physical harm may be shown by testimony of medical treatment.’ ” State v.

Morgan, 2d Dist. Clark No. 2018-CA-103, 2019-Ohio-3691, ¶ 55, quoting State v.

Huckabee, 8th Dist. Cuyahoga No. 67588, 1995 WL 628374, *4 (Oct. 26, 1995). The note

on the definition of “serious physical harm” gives as an example, “an injury or illness

requiring more or less prolonged hospitalization or bed rest which temporarily interferes

with the victim’s ability to work.” 1973 Legislative Service Commission Note, R.C.

2901.01.

      {¶ 19} After viewing the evidence in the light most favorable to the State, a

reasonable trier of fact could have found that the physical harm caused by Garner was
                                                                                              -10-


“serious.” The evidence showed that Garner threw open baggies of methamphetamine in

the direction of the three officers and that all three officers suffered injury, illness, or other

physiological impairment. All three officers went to the hospital for treatment and

decontamination, and the medical testimony showed that they were treated for exposure

to meth. We conclude that the officers’ physical harm temporarily and substantially

incapacitated them by rendering them unable to work. See In re Reed, 147 Ohio App.3d

182, 2002-Ohio-43, 769 N.E.2d 412, ¶ 37-38 (8th Dist.) (concluding that evidence that

the victim was dizzy and fell while walking could fit the “temporary, substantial incapacity”

definition of “serious physical harm to persons,” where the defendant dropped the victim

on her head and the victim did not seek medical treatment).

       {¶ 20} In regard to Garner’s culpable mental state, a felonious assault conviction

under R.C. 2903.11(A)(1) requires evidence that the offense is committed with

knowledge. “A person acts knowingly, regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature.” R.C. 2901.22(B).

       {¶ 21} At the time of the offense, Officers Buchert, Bruner, and Anglero were

standing in front of Garner trying to get him to hand over the baggies. Garner moved like

he was going to hand them to Bruner. Instead, Garner quickly ripped open the baggies

and threw them in the officers’ direction, hitting Bruner’s hand before spilling the powdery

contents on the floor. Later, when Anglero asked him what it was, Garner retorted, “You’ll

find out.” (Tr. 261.)

       {¶ 22} It was reasonable to infer that Garner was aware that throwing open

baggies of a powdery drug like methamphetamine would probably seriously harm the
                                                                                         -11-


officers. Indeed, it would appear from the evidence that that was precisely Garner’s intent.

See Reed, 147 Ohio App.3d 182, 2002-Ohio-43, 769 N.E.2d 412, at ¶ 39 (After dropping

the victim on her head, the defendant said that he was just fooling around, that he had

executed a move that he had frequently seen wrestlers on television do. The appellate

court found that, though there was no direct evidence that the defendant considered the

move dangerous, an intent to harm could be inferred from his actions, and the factfinder

could have reasonably concluded that the defendant could have foreseen some harm

would result from dropping the victim on her head.). Garner’s “you’ll find out" statement,

though non-specific, could be interpreted to mean that he knew he was exposing the

officers to meth and knew it would have consequences. We conclude that the evidence

was sufficient for the trier of fact to conclude that Garner acted with knowledge.

       {¶ 23} As to Garner’s manifest-weight challenge, the jury instructions on “serious

physical harm” and “knowingly” correctly track the relevant statutory language.      This is

not an     “ ‘exceptional case in which the evidence weighs heavily against the

conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio

App.3d at 175, 485 N.E.2d 717. We conclude that the jury neither lost its way nor created

a miscarriage of justice in finding Garner guilty on the three counts of felonious assault.

                                  B. The assault conviction

       {¶ 24} Garner was convicted of assaulting Corporal Nichols under R.C.

2903.13(B), which provides that “[n]o person shall recklessly cause serious physical harm

to another.” Like his challenges to the felonious assault convictions, Garner challenges

whether the harm he caused was serious and whether he acted with the culpable mental

state, which for assault is “recklessly.”
                                                                                          -12-


       {¶ 25} Although Corporal Nichols was not in the locker room when Garner threw

the open baggies, Nichols was in the attached processing room, where traces of meth

were found. Later, after helping Deputy Buchert when she collapsed, Nichols developed

a headache, felt tingling in his face and mouth, and experienced elevated blood pressure.

He sought treatment at the hospital.

       {¶ 26} Based on our earlier serious-harm analysis, and viewing the evidence in a

light most favorable to the prosecution, we think that a rational trier of fact could have

reasonably found that Corporal Nichols too suffered “serious physical harm.” Like the

three other officers, he suffered injury, illness, or other physiological impairment, was

unable to continue working, and sought treatment at the hospital for symptoms of

methamphetamine exposure, which was sufficient to find that the harm involved a

“temporary, substantial incapacity.”

       {¶ 27} The culpable mental state for assault is recklessness. “A person acts

recklessly when, with heedless indifference to the consequences, the person disregards

a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain

result or is likely to be of a certain nature.” R.C. 2901.22(C). “Risk” is pertinently defined

as “a significant possibility, as contrasted with a remote possibility, that a certain result

may occur.” R.C. 2901.01(A)(7).

       {¶ 28} Potentially, any officer in the jail could have been indirectly exposed to the

methamphetamine that Garner threw. The powdery nature of the drug allowed it to get

into the air easily and land on any of the three officers’ clothing, which appears to be what

happened here. It could reasonably be inferred that, when Garner threw the open

baggies, some of the drug got on Deputy Buchert. This created a significant possibility
                                                                                          -13-


that another officer who came in contact with her would be exposed. Corporal Nichols

helped Buchert to the medical office and likely inhaled the meth that was on her clothing.

We think that a rational juror could have found that, by throwing open baggies of

methamphetamine, Garner acted with heedless indifference to the consequences and

disregarded a significant possibility that another officer, like Corporal Nichols, would be

seriously harmed.

       {¶ 29} As to the manifest weight of the evidence, this is not an “ ‘exceptional case

in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d

at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost its way nor created a miscarriage of justice in finding Garner guilty of assault.

                                    C. The vandalism conviction

       {¶ 30} Garner was convicted of vandalism for violating R.C. 2909.05(B)(2), which

provides that “[n]o person shall knowingly cause serious physical harm to property that is

owned, leased, or controlled by a governmental entity.” The definition of “serious physical

harm” in the vandalism statute is “physical harm to property that results in loss to the

value of the property of one thousand dollars or more.” R.C. 2909.05(F)(2). Garner says

that the State presented evidence of the cost of the cleanup but failed to present evidence

of loss to the value of the jail.

       {¶ 31} The cost to restore property is evidence of loss to the value of the property,

and R.C. 2909.11(B) provides that “damages can be measured by the reasonable costs

of restoring the property.” State v. Baker, 2016-Ohio-315, 58 N.E.3d 498, ¶ 20 (2d Dist.).

R.C. 2909.11(A) provides that a jury need only find that the amount of damage was

greater than $1,000, as required by R.C. 2909.05. Here, the testimony of the county
                                                                                        -14-


auditor as to the cost to decontaminate and clean the jail constituted sufficient evidence

from which a reasonable jury could have found, beyond a reasonable doubt, that Garner

caused damage in excess of $1,000, which was sufficient to convict him of vandalism.

See State v. Jonas, 4th Dist. Athens No. 99CA38, 2001 WL 803825, *8 (Mar. 6, 2001)

(concluding that cleanup costs should be included for purposes of determining serious

physical harm, where defendant jail inmate had spread excrement in his cell and jail

hallway, and that the county had to restore property to its original condition by cleaning

and sanitizing because the failure to do so would result in loss of value to the property);

Baker at ¶ 25 (the evidence of loss to property included “the indiscriminate splashing of

blue paint throughout the premises”).

      {¶ 32} As to Garner’s manifest-weight challenge, this is not an “ ‘exceptional case

in which the evidence weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d

at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. We

conclude that the jury neither lost its way nor created a miscarriage of justice in finding

Garner guilty of vandalism.

                                     III. Conclusion

      {¶ 33} The first and second assignments of error are overruled. The trial court’s

judgment is affirmed.

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

WELBAUM, J., concurs.

FROELICH, J., concurs in part and dissents in part:

      {¶ 34} To sustain a conviction for felonious assault, the defendant must have

knowingly caused “serious physical harm to persons,” which in this case meant physical
                                                                                       -15-


harm “that involve[d] some temporary, substantial incapacity.” R.C. 2901.01(A)(5)(c).

As the majority opinion recognizes, the degree of harm required “is not an exact science.”

Irwin, 7th Dist. Mahoning No. 06MA20, 2007-Ohio-4996, at ¶ 37.

       {¶ 35} I agree that Deputy Buchert sustained “serious physical harm.”         She

became nauseated, experienced dizziness, vomited, collapsed, had to be helped to the

jail’s medical office, and was taken to the hospital.

       {¶ 36} On the other hand, Captain Bruner and Corporal Nichols experienced a

tingling sensation, headache, and “increased blood pressure.” Bruner indicated that he

also experienced heat radiating from his chest and general weakness. Deputy Anglero

experienced “elevated blood pressure,” nausea, and lightheadedness. (The record does

not show the symptomology that, to the officers, indicated their blood pressure became

elevated or the degree of elevation.) The officers went to the hospital for examination,

and they were treated for exposure to methamphetamine. Their symptoms subsided

after a couple hours, and they were released from the hospital. Bruner and Nichols

experienced similar symptoms the next day; they returned to the hospital for treatment

and then went home.

       {¶ 37} While this may be a matter of small degrees, I would conclude that the

symptoms experienced by Bruner, Nichols, and Anglero did not rise to the level of serious

physical harm, unlike Buchert, who collapsed and needed assistance to the jail’s medical

office. This does not minimize the harm caused to them, but more so acknowledges the

harm sustained by Buchert. The difference recognized by the statutes between causing

“serious physical harm” (a felony of the first or second degree) and “physical harm” (a
                                                                                    -16-


fourth-degree felony if on an officer, but otherwise a misdemeanor) must be more than a

temporary inability to continue working.

      {¶ 38} The record proves that Garner acted both recklessly and knowingly.

      {¶ 39} I would sustain the felonious assault charge involving Deputy Buchert, but

would reverse the felonious assault convictions involving Captain Bruner and Deputy

Anglero and the assault conviction involving Corporal Nichols. Although this would have

no practical effect on his aggregate sentence, I would remand those counts.




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James D. Bennett
Richard L. Kaplan
Hon. Jonathan P. Hein
