[Cite as State v. Taylor, 2020-Ohio-3589.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                                  No. 108347
                 v.                                :

SAMUEL TAYLOR,                                    :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: July 2, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-629692-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
                 Attorney, for appellee.

                 Walter H. Edwards, Jr., for appellant.


EILEEN T. GALLAGHER, A.J.:

                   Defendant-appellant,         Samuel   Taylor   (“Taylor”),   appeals   his

convictions and claims the following four errors:

        1. Appellant’s Sixth Amendment right to the effective assistance of
        counsel was violated where trial counsel failed to raise objections to
      improper evidence and comments and failed to request a jury
      instruction for a lesser included offense.

      2. The state committed prosecutorial misconduct by improperly
      stating the law to the jury during closing arguments.

      3. The trial court erred in denying appellant’s motion for acquittal
      pursuant to Ohio Crim.R. 29.

      4. Appellant’s convictions were against the manifest weight of the
      evidence.

               We find no merit to the appeal and affirm the trial court’s judgment.

                           I. Facts and Procedural History

               Taylor was charged, in connection with the death of William Lodge

(“William”), with one count of aggravated murder in violation of R.C. 2903.01(A),

one count of murder in violation of R.C. 2903.02(B), and two counts of felonious

assault in violation of R.C. 2903.11(A)(1) and 2903.11(A)(2). The felonious assault

charges contained repeat violent offender and notice of prior conviction

specifications, which were bifurcated and tried separately to the bench. The four

counts of the indictment were tried to a jury.

               William bled to death after sustaining a cut on his head on the night

of June 2, 2018. Anthony Lodge (“Anthony”), William’s brother, testified at trial

that in June 2018, William, who had early signs of dementia, was living in their sister

Lydia’s home in Maple Heights, Ohio. (Tr. 192.) According to Anthony, Lydia was

married to Taylor for a period of time, was no longer married to him in June 2018,

and was “restricted from [her] house.” (Tr. 222.) Lydia was in the hospital in early
June 2018, and Anthony was taking care of William but lived in an apartment at a

different location. (Tr. 191, 235.)

               On June 2, 2018, Anthony drove William to a nearby Giant Eagle

store to buy beer.     Anthony waited in the car while William was shopping.

Unbeknownst to Anthony, William walked home from the store, leaving Anthony

waiting in the parking lot. (Tr. 192, 212.) After waiting an hour, Anthony searched

for William in the store and eventually found him back at Lydia’s house with Taylor

and a mutual friend, Gary Simmons (“Simmons”). William, Anthony, Taylor, and

Simmons had been friends for more than four decades, and they were about to start

drinking. According to Anthony, they were all “drinkers.” (Tr. 194.)

               Anthony scolded William for leaving him waiting in the Giant Eagle

parking lot and an argument ensued. Taylor joined the argument swinging a box

cutter at Anthony. (Tr. 196.) Simmons grabbed Taylor by the neck and restrained

him from cutting Anthony. (Tr. 198.) Just then, Anthony’s phone happened to ring,

he was called away, and the fight ended. (Tr. 198.) Anthony left the house sometime

between 8:30 and 9:00 p.m. Taylor, William, and Simmons continued drinking for

a few more hours.

               Simmons testified that as he was pouring another drink at

approximately 11:00 p.m., he looked up and saw William and Taylor wrestling “nose

to nose.” (Tr. 247-248, 295.) He intervened to break them up and asked William if

he was okay. William replied: “[Y]es, I’m all right.” Simmons suggested that
William spend the night at his house, but William refused, insisting “I’m cool.” (Tr.

248.) Thereafter, Simmons, who was drunk, drove home. (Tr. 249.)

               Anthony was awakened the next morning by his girlfriend’s eight-

year old son, who was hungry. Anthony decided to take him to Subway and stopped

by Lydia’s house to see if William wanted a sandwich. (Tr. 201.) When they arrived

at the house, Anthony noticed blood in the driveway and on the front porch.

Anthony described the inside of the house as follows:

      I saw blood all over the front room. I walked in the house. I seen the
      house was tore up. I seen blood all over the walls, on the carpet, the
      kitchen wall.

      And I happened to look and see my brother sitting at the kitchen table
      and he was slumped down * * *.

      He was moving, trying to move his foot. * * *

      I walked up to my brother and I seen all of this blood in his face. * * * I
      touched him to see * * * if he was still alive. And he started mumbling
      and shaking.

      * * *

      I said what happened? What happened, bro?

      He managed to — he stuttered real bad. But he did call Mr. Samuel’s
      name —

(Tr. 202.) After checking to see if Taylor was somewhere in the house, Anthony

called 911. (Tr. 204.)

               Meanwhile, Simmons woke up in his home and discovered blood on

his shoes. He immediately called William and Anthony, but neither one answered

his phone. (Tr. 253.) Simmons put on the same clothes he wore the night before,
intending to go to the house when Anthony called and told him what happened to

William. (Tr. 253.) Anthony told Simmons the Maple Heights police wanted to talk

to him because they obtained his license plate number from a surveillance camera

on a neighboring house. Anthony and Simmons went together to the Maple Heights

police station and made statements regarding the night’s events. (Tr. 254.) There

was blood on Simmons’s clothes, and he turned his clothes over to police. (Tr. 256.)

              Dr. Joseph Felo, the deputy chief medical examiner of the Cuyahoga

County Medical Examiner’s Office, testified that William bled to death from a cut in

the temple area of his face. (Tr. 308.) He described the cut as a “clean cut” from a

sharp object such as a knife rather than from a blow from a solid blunt object or a

broken piece of glass, which would have made an irregular “laceration.” (Tr. 313,

327.) A person with William’s kind of injury would be able to walk and talk and ask

for help. (Tr.329.) Dr. Felo explained that although this type of cut was not

generally considered life threatening, William must have lost 2o percent of his blood

because his organs failed due to an excessive blood loss. (Tr. 309.) Dr. Felo

explained that he would expect a person with William’s kind of injury to survive, but

he or she would require medical treatment. (Tr. 319.) Thus, Dr. Felo explained:

      So, although this is a relatively minor injury, he died because of
      complications of the injury that was inflicted upon him by someone
      else. And an inflicted wound caused by someone that results in a death
      is classified as a homicide.

(Tr. 320.) He further explained that if a victim is injured by someone else, the

victim’s failure to successfully save himself does not change the cause of death
classification from homicide to suicide. (Tr. 333.) According to Dr. Felo, William’s

hands did not have any injuries, and there was no evidence of defensive wounds to

suggest that he tried to defend himself. (Tr. 329.)

               A toxicology report from MetroHealth, where William was taken for

treatment before he died, indicated that William had a blood alcohol content of .032

percent, which Dr. Felo described as a “very low level of alcohol.” (Tr. 322.)

However, William would have had a higher percentage of blood alcohol at the time

of the cut, and Dr. Felo could not accurately calculate that level, but “it would be

significantly higher than .03.” (Tr. 323.)

               An arrest warrant was issued for Taylor a few days after the incident.

(Tr. 439.) On June 19, 2018, Officer Christopher Faunce of the Maple Heights Police

Department was dispatched to University Hospitals, where Taylor was a patient, to

interview Taylor. Officer Faunce’s body camera recorded the interview, which was

played for the jury. During the interview, Taylor admitted that he swung a utility

knife at William and acknowledged that William was bleeding. (Tr. 365-366.)

Taylor claimed that William tried to grab the blade while trying to take the knife

from him, and William’s hand started to bleed. (Tr. 365, 368.) Taylor also originally

claimed that he and Simmons took William to the hospital, but subsequently

changed his testimony and said they left him at the house. (Tr. 366.) Finally, Taylor

told police that he left the knife used to cut William in the house. (Tr. 366.)

               Carey Baucher, a DNA specialist with the Cuyahoga County Regional

Forensic Science Laboratory, testified that she performed the DNA testing in this
case. She found no foreign DNA in the swabs taken from William’s right and left

fingernails. (Tr. 385.) The swabs of blood taken from the kitchen and the front

porch contained only William’s DNA. (Tr. 385, 388.) However, DNA on a can of

beer in the kitchen contained DNA from William, Simmons, and Taylor. Swabs from

another can of beer found in the milk chute contained Taylor’s DNA. (Tr. 396.)

               Detective Thomas Halley of the Maple Heights Police Department

testified that he was the lead investigator on the case. He took photographs and

collected evidence from inside the home pursuant to a search warrant. Despite a

thorough search of the house, he did not find a folding utility knife matching the

description of the knife Taylor gave to police. However, on the floor of the basement,

Detective Halley found a heap of bloody clothes William must have taken off before

he went upstairs and sat on the chair in the kitchen, where he was found wearing

only a pair of gym shorts and no shirt or shoes. (Tr. 416-417, 431.)

               Following the state’s case, Taylor moved for acquittal of all counts in

the indictment pursuant to Crim.R. 29. The trial court granted the motion as to the

aggravated murder charge, but denied it as to the remaining charges. The jury found

Taylor guilty of murder and both counts of felonious assault. The court stayed ruling

on all the specifications and notices of prior convictions attendant to the felonious

assault counts.1 All counts merged for sentencing purposes, the state elected to


      1   The sentencing entry is a final, appealable order even though the court never
ruled on the specifications. See State v. Payne, 8th Dist. Cuyahoga No. 17825, 2020-
Ohio-1599, ¶ 8-9, citing State ex rel. Rodriguez v. Barker, 158 Ohio St.3d 39, 2019-Ohio-
4155, 139 N.E.3d 885, ¶ 9 (reaffirming the proposition that the failure to resolve a
specification does not affect the finality of a sentencing entry).
proceed on the murder conviction, and the court sentenced Taylor to 15 years to life.

Taylor now appeals his convictions.

                                II. Law and Analysis

                     A. Ineffective Assistance of Counsel

              In the first assignment of error, Taylor argues his Sixth Amendment

right to the effective assistance of counsel was violated when his trial counsel (1)

failed to raise objections to improper evidence and misleading comments made by

the prosecutor during closing arguments and (2) failed to request a jury instruction

on a lesser included offense.

              To establish an ineffective assistance of counsel claim, the appellant

must show that his trial counsel’s performance was deficient and that the deficient

performance prejudiced his defense. State v. Drummond, 111 Ohio St.3d 14, 2006-

Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant

demonstrates “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Strickland at 694.

              Trial advocacy falling below an objective standard of reasonableness

constitutes deficient performance. State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989). However, judicial scrutiny of counsel’s performance is highly

deferential, and “reviewing courts must refrain from second-guessing the strategic

decisions of trial counsel.” State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965
(1995). In other words, strategic decisions do not constitute ineffective assistance

of counsel even if they are ultimately unsuccessful. Id.

                    1. Failure to Object to Autopsy Photos

              Taylor first argues his trial lawyers were ineffective because they

failed to object to 13 autopsy photographs introduced by the state at trial. He

contends he was prejudiced by the photographs because they were gruesome and

their probative value was outweighed by the danger of unfair prejudice.

              However, the record contains five photographs of the cut on William’s

head. Since William sustained no other injuries, these photographs were relevant

to show the injury that resulted in William’s death. These photographs were also

relevant because Taylor told police that he took William to the hospital for treatment

before he died. Photographs of William’s head taken by police at the house the

morning he was found show the cut before William was taken by EMS to

MetroHealth for treatment. Some of the autopsy photographs show his head after

William received medical treatment at MetroHealth. The police photographs show

that the cut was not treated with any staples or sutures. Autopsy photographs show

that the cut was sutured closed with staples and stitches when William received

treatment at MetroHealth. The difference in these photographs was relevant to

prove that Taylor lied about taking William to the hospital for treatment because,

had William been taken to the hospital, his wound would have been sutured closed

when Anthony discovered him the next morning.
               Three of the autopsy photographs showed what the wound looked like

after the staples had been removed. One of the photographs showed the wound

slightly more open than the others and allowed the jury to see the depth of the cut.

These were the only photographs of the wound itself. Thus, there was not an

excessive number of photographs of the wound admitted into evidence.

               Moreover, there were no photographs of the entirety of William’s

nude body and no photographs of the inside the decedent’s body after dissection or

organ removal were ever shown to the jury. The most gruesome photographs were

never submitted to the jury. The photographs that were submitted to the jury, such

as photographs of William’s hands, were relevant to rebut Taylor’s claim that

William grabbed the blade of the knife during the scuffle. Dr. Felo testified that

William’s body showed no signs of injuries sustained in any act of self-defense.

Therefore, there was no reason for defense counsel to object to the autopsy

photographs.

               2. Failure to Object to Prosecutor’s Comments

               Taylor contends his trial counsel was ineffective because they failed

to object to the prosecutor’s statement during closing argument that Taylor’s failure

to help William obtain necessary medical treatment was akin to a hit- and-run car

crash where the driver who leaves the scene is responsible for the death or injuries

of the party left at the scene. Taylor argues this analogy improperly misled the jury

because although Ohio law imposes a well-known duty on drivers to stop after any
kind of collision, Taylor was not legally required to render assistance or contact

authorities on behalf of William.

              Challenged comments from closing arguments should not be

reviewed in isolation; they must be considered in the context of the entire closing

argument. State v. Webster, 8th Dist. Cuyahoga No. 102833, 2016-Ohio-2624, ¶ 99.

See also State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047,

¶ 107 (“[I]solated comments by a prosecutor are not to be taken out of context and

given their most damaging meaning.”).

              The prosecutor made the hit-and-run analogy during rebuttal in

response to the following remarks made during Taylor’s closing argument:

      All right. Now, they want to paint a picture for you that Sam is violent,
      but they want to convince you that because William is suffering some
      form of dementia, he’s okay.

      He’s forgetful. And that’s the only reason that he didn’t seek help once
      he had the cut on his forehead.

      A cut that was not deep. It was not serious, and he would not have died
      from it if he had gotten treatment for it.

      It’s that, period. So, do you really hold Samuel Taylor responsible for a
      person that bleeds out over 11, 12 hours from a cut that was not a deep
      cut, not a serious cut, not a cut that cut any major veins or anything of
      that nature? And we know he’s bleeding that way or that because of all
      the liquor he has drank.

      * * *

      Obviously, if you believe that he’s responsible for the cut on William’s
      head, that is felonious assault.

      That is not murder. That is felonious assault. Causing physical harm
      to another. That’s what felonious assault is in this instance, or you say
      felonious assault where he caused serious physical harm because he
      had the box cutter and he cut him on the forehead.

      You know, but that is not murder. And I believe Dr. Felo when he
      testified and I think his testimony is crucial here. Because he said to
      you that homicide does not equal murder. Homicide do not equal
      murder.

      * * *

      In order to find him guilty, you have to believe it was foreseeable that
      whatever they were arguing about, and whatever cut that William
      sustained, somehow Sam Taylor would have known or had to know it
      would result in his death.

(Tr. 515-516, 518, 520.) Although Taylor admitted that he cut William with the knife,

his trial counsel tried to shift the blame for the cause of the death to William. In

response to this argument, the prosecutor asserted, in relevant part:

      What [Taylor’s attorney] just said to you, his client is not responsible
      for William Lodge’s death. He just said that to you. And he said it’s
      because it’s not foreseeable that William Lodge would not try to help
      himself and get himself medical attention.

      That’s the argument here. Let me just say this: The law does not
      require a victim who’s been a victim of a crime to save him or herself.

      * * *

      They want to put the blame on William. They’re putting the blame on
      William. They’re saying its William’s job. William’s dead because
      William didn’t help himself.

      * * *

      I asked Dr. Felo, I gave him that scenario. If someone gets cut, and they
      know they’re bleeding and they don’t call 9-1-1, they don’t get
      themselves help, is that somehow a suicide? His answer is no, of course
      not.
      We lay blame where it should be laid [sic]. And it’s with him. Nobody
      else. Think of it this way.

      Think of it in another scenario. Hit and run. Driver’s driving, nails a
      car on the side of the road, knowing that someone’s in there, someone
      may be hurt and drives off.

      And that person in that car has a phone, but doesn’t call 9-1-1. That
      person dies. Who are we going to blame? Who are we going to be
      blaming for that? Who’s the law holding accountable for that? They’re
      holding accountable the driver who hit them. Not the person who
      didn’t save themselves.

(Tr. 521-522, 527-528.) In this context, the state’s argument is not misleading. The

hit-and-run analogy illustrates the state’s argument that when someone causes

injury to another, he or she must mitigate the harm caused to the victim or be held

responsible for the consequences that result from the failure to render aid. The

prosecutor made this point to rebut Taylor’s suggestion that William was

responsible for his own death because he failed to help himself.            The state’s

argument was also consistent with Dr. Felo’s testimony that a victim’s failure to save

himself from an injury caused by someone else does not change the death

classification from a homicide to a suicide; it is still a homicide. (Tr. 333.)

               Moreover, the state’s argument was consistent with the law applicable

to the murder charge alleged in the indictment. Taylor was charged with felony

murder in violation of R.C. 2903.02(B), which required the state to prove that Taylor

caused William’s death “as a proximate result of the offender’s committing * * * an

offense of violence that is a felony of the first or second degree * * *.” In addition to

the murder charge, Taylor was charged with two counts of felonious assault, in
violation of R.C. 2903.11(A)(1) and 2903.11(A)(2), for knowingly causing, or

attempting to cause William serious physical harm by means of a deadly weapon.

Both counts of felonious assault were second-degree felonies. Thus, if the jury found

that Taylor committed felonious assault by knowingly causing or attempting to

cause serious physical harm to William by means of a deadly weapon, it would also

have to hold him responsible for William’s death if his death was the proximate

result of either or both of the felonious assaults. Just as a driver is responsible for

any harm resulting from a hit-and-run car crash, Taylor was responsible, pursuant

to R.C. 2903.02(B), for any harm resulting from his acts of felonious assault.

Therefore, even if defense counsel had objected to the state’s hit-and-run analogy,

the objection would have been appropriately overruled.

                      3. Lesser Included Offense Charge

               Taylor further argues his trial counsel was ineffective because they

failed to request a jury instruction on the lesser included offense of reckless

homicide. However, Taylor was convicted of felony murder in violation of R.C.

2903.02(B), which states, in relevant part, that “[n]o person shall cause the death of

another as a proximate result of the offender’s committing * * * an offense of

violence that is a felony of the first or second degree * * *.” In order to prove felony

murder under R.C. 2903.02(B), the state must prove that the victim’s death was

proximately caused by the commission or attempted commission of a violent

predicate offense, such as felonious assault. This court has held that felony murder

under R.C. 2903.02(B) is a strict-liability offense because it does not include a
culpable mental state for causing another’s death. State v. Owens, 8th Dist.

Cuyahoga No. 107494, 2019-Ohio-2221, ¶ 21, citing State v. Nolan, 141 Ohio St.3d

454, 2014-Ohio-4800, 25 N.E.3d 1016, ¶ 9. See also State v. Fry, 125 Ohio St.3d

163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 43 (felony murder under R.C. 2903.02(B)

contains no mens rea component).

               In Owens, this court held that although “it is conceivable that a

reckless homicide could factually be found within the commission of felony

murder,” it is not a lesser included offense felony murder as defined by the relevant

statutes because the reckless homicide statute imposes a greater mental state with

respect to causing the death of the victim than does the felony murder statute. Id.

at ¶ 26. To be convicted of reckless homicide, R.C. 2903.041 requires the state to

prove that the defendant recklessly caused the victim’s death. There must be

evidence that the defendant demonstrated “‘a heedless indifference to the

consequences’ and a ‘disregard’ of a known risk in causing the death of the victim.”

Id. at ¶ 24. By contrast, an offender may commit felony murder without having

committed reckless homicide because, under the felony murder statute, the

defendant may commit felony murder without any culpable mental state with

respect to causing the victim’s death. Id.

               Taylor was convicted of two counts of felonious assault in violation of

R.C. 2903.11(A)(1) and 2903.11(A)(2), for knowingly causing, or attempting to cause

William serious physical harm by means of a deadly weapon. Because William died

as a result of injuries he sustained from the act of felonious assault, Taylor is guilty
of felony murder under R.C. 2903.02(B), regardless of his purpose. Therefore, even

if counsel had requested a jury instruction on reckless homicide, it would have been

denied as inappropriate under the circumstances of this case.

              The first assignment of error is overruled.

                         B. Prosecutorial Misconduct

              In the second assignment of error, Taylor argues the state committed

prosecutorial misconduct by inaccurately stating law to the jury during closing

argument. He contends the state improperly imposed a duty on Taylor to assist

William after he was cut where there was no such duty of care. Again, Taylor objects

to the prosecutor’s hit-and-run analogy.

              The test for prosecutorial misconduct in closing argument is

“‘whether the remarks were improper and, if so, whether they prejudicially affected

substantial rights of the defendant.’” State v. Hessler, 90 Ohio St.3d 108, 125, 734

N.E.2d 1237 (2000). The touchstone analysis is the fairness of the trial, not the

culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71

L.Ed.2d 78 (1982).

              As explained in the previous assignment of error, the hit-and-run

analogy illustrated the point that when someone causes injury to another, he or she

must mitigate the harm caused to the victim or be held responsible for the

consequences resulting from the harm and subsequent failure to render aid. The

argument was consistent with the felony murder statute, which holds an offender

criminally liable for a victim’s death if the death resulted from the offender’s
“committing * * * an offense of violence that is a felony of the first or second degree

* * *.” R.C. 2903.02(B). Although there is no express duty to render a victim

assistance under the statute, the failure to render life-saving aid will result in a felony

murder conviction if the victim’s death was proximately caused by the defendant’s

violent criminal acts. We, therefore, cannot say that the prosecutor’s hit-and-run

analogy was improper under the circumstances of this case nor can we say that

Taylor was prejudiced by it.

               The second assignment of error is overruled.

             C. Sufficiency and Manifest Weight of the Evidence

               In the third assignment of error, Taylor argues the trial court erred in

denying his Crim.R. 29 motion for acquittal because his convictions are not

supported by sufficient evidence. In the fourth assignment of error, Taylor argues

his convictions are against the manifest weight of the evidence. Although the terms

“sufficiency” and “weight” of the evidence are “quantitatively and qualitatively

different,” we address these issues together because they are closely related, while

applying the distinct standards of review. State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997).

               The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

               In contrast to sufficiency, “weight of the evidence involves the

inclination of the greater amount of credible evidence.” Thompkins at 387. While

“sufficiency of the evidence is a test of adequacy as to whether the evidence is legally

sufficient to support a verdict as a matter of law, * * * weight of the evidence

addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In

other words, a reviewing court asks whose evidence is more persuasive — the state’s

or the defendant’s?” Id. The reviewing court must consider all the evidence in the

record, the reasonable inferences, and the credibility of the witnesses to determine

“‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

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

               In conducting such a review, the Ohio Supreme Court has stated that

the appellate court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v. Florida, 457

U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).            The Supreme Court’s

characterization of the appellate court as a “thirteenth juror” refers to the appellate

court’s “‘discretionary power to grant a new trial.’” Id. at 547, quoting Martin at 175.

As a “thirteenth juror,” the appellate court may disagree with the factfinder’s
resolution of the conflicting evidence and, in effect, create a deadlocked jury, which

requires a new trial.

               However, our status as a “thirteenth juror” is not equal to the other

twelve jurors, who are uniquely positioned to view the witnesses’ demeanor,

gestures, facial expressions, and voice inflections. These outward behaviors are not

evident in a written transcript. Demeanor is not what the witness says, but the

manner in which he or she says it. Demeanor evidence is invaluable in assessing a

witness’s credibility, yet it is totally lost in transmission to the court of appeals. It is

for this reason that “the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of facts.” State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus.

               “Because the trier of fact sees and hears the witnesses and is

particularly competent to decide ‘whether, and to what extent, to credit the

testimony of particular witnesses,’ we must afford substantial deference to its

determinations of credibility.” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-

2420, 929 N.E.2d 1047, ¶ 20, quoting State v. Lawson, 2d Dist. Montgomery No.

16288, 1997 Ohio App. LEXIS 3709, 4 (Aug. 22, 1997). Although we have the

discretionary power of a “thirteenth juror” to grant a new trial, that power “‘should

be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.’” Thompkins at 547, quoting Martin at 175. A finding that a

conviction was supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency. State v. Robinson, 8th Dist. Cuyahoga No. 96463,

2011-Ohio-6077.

              Taylor was convicted of two counts of felonious assault in violation of

R.C. 2903.11(A)(1) and 2903.11(A)(2), which state, in relevant part, that “no person

shall knowingly * * * cause serious physical harm to another” or “cause or attempt

to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.” Taylor argues the state failed to prove that he acted “knowingly” when

he cut William’s head with the knife. R.C. 2901.22(B) defines the term “knowingly”

as follows:

      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. A person has knowledge of
      circumstances when the person is aware that such circumstances
      probably exist. When knowledge of the existence of a particular fact is
      an element of an offense, such knowledge is established if a person
      subjectively believes that there is a high probability of its existence and
      fails to make inquiry or acts with a conscious purpose to avoid learning
      the fact.

              Simmons testified that he was drinking with Taylor, Williams, and

Anthony for hours before the incident occurred. When Anthony arrived and argued

with William about leaving him waiting at the Giant Eagle, Simmons observed

Taylor, who was holding a box cutter knife, insert himself into the argument even

though it had nothing to do with him. Shortly thereafter, Simmons saw Taylor

approach Anthony “like they were going to fight or something.” (Tr. 241.) Simmons

grabbed Taylor by the neck and restrained him from cutting Anthony. (Tr. 198.) A

few hours later, Simmons observed Taylor fighting with William.              Simmons
described them as “close, like, they were fighting or wrestling.” (Tr. 247-248.)

Simmons again intervened and broke up the fight without realizing that William’s

head had been cut. (Tr. 249.) William must have sustained the cut during this fight

with Taylor because Simmons later discovered blood on his clothes and shoes, and

Dr. Felo testified that William sustained only one injury. Dr. Felo also testified that

the cut was made by a sharp knife because it was a “clean cut” as opposed to a jagged

“laceration” caused by a blunt object or a broken piece of glass. (Tr. 313, 327.)

               The clean cut on William’s head could not have been made by

accident; it required Taylor to raise the knife above his head and slice William’s

head. Also, the cut is deeper than a scratch and extends several inches long.

Moreover, Taylor admitted in his statement to police that he cut William, but

claimed William cut his hand rather than his head. Nevertheless, he also admitted

that he could not stop William from bleeding. Therefore, there was sufficient

evidence that Taylor knowingly cut William’s head and knew he was bleeding.

               Although Taylor claims his convictions are not supported by credible

evidence, he fails to explain how his convictions are against the manifest weight of

the evidence. We find no reason to doubt Simmons’s testimony. Although Taylor

claimed that William grabbed the knife and cut his hands, Dr. Felo testified that

William had no injuries to his hands, and the autopsy photographs of William’s

hands corroborate Dr. Felo’s testimony. Indeed, Taylor’s initial statement that he

took William to the hospital because he could not stop the bleeding is belied by the

evidence that William’s head wound was not treated with sutures until the day after
the incident.     Thus, Taylor’s incredulous statements only serve to further

incriminate him, and his felonious assault convictions are not against the manifest

weight of the evidence.

                As previously stated, Taylor was convicted of felony murder under

R.C. 2903.02(B), which required the state to prove that William’s death was the

proximate result of Taylor acts of felonious assault. Taylor argues there is no

evidence that he proximately caused William’s death by cutting his head since the

injury was non-life threatening and many hours elapsed between the time Williams

sustained the cut and the time he died.

                This court has held that for criminal conduct to constitute the

“proximate cause” of a result, the conduct must have (1) caused the result, in that

but for the conduct the result would not have occurred, and (2) the result must have

been foreseeable. State v. Muntaser, 8th Dist. Cuyahoga No. 81915, 2003-Ohio-

5809, ¶ 38, citing State v. Lovelace, 137 Ohio App.3d 206, 738 N.E.2d 418 (1st

Dist.1999). Foreseeability is determined from the perspective of what the defendant

knew or should have known, when viewed in light of ordinary experience. Id. It is

not necessary that the defendant be able to foresee the precise consequences of his

conduct; only that the consequences be foreseeable in the sense that what actually

transpired was natural and logical in that it was within the scope of the risk created

by the defendant. Id.

                The evidence showed that William had been drinking and that he

suffered from a mental disability that was obvious to anyone who knew him,
including Taylor. (Tr. 191.) There was also evidence that the cut on William’s head

caused him to lose copious amounts of blood as described by Anthony and as

depicted in photographs of the house and of William’s blood-drenched clothes.

Common sense dictates that the loss of excessive blood could be life-threatening,

and Dr. Felo testified that William died as the result of losing excessive amounts of

blood. In other words, it was foreseeable that the cut would result in William’s death

if he did not receive prompt medical treatment to close the wound. Therefore, there

was sufficient, competent, and credible evidence that William died as a proximate

result of Taylor’s acts of felonious assault.

               The third and fourth assignments of error are overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.           The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and
EILEEN A. GALLAGHER, J., CONCUR
