[Cite as State v. Laraby, 2018-Ohio-113.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 27466
                                                  :
 v.                                               :   Trial Court Case No. 2016-CR-1223
                                                  :
 JASON R. LARABY                                  :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                            Rendered on the 12th day of January, 2018.

                                             ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Kettering, Ohio
45419
      Attorney for Defendant-Appellant

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




TUCKER, J.
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       {¶ 1} Defendant-appellant Jason Laraby was indicted on June 8, 2016 on one

count of Felonious Assault (serious physical harm) in violation of R.C. 2903.11(A)(1).

Laraby, on November 29, 2016, appeared before the trial court at which time he, in open

court, signed a waiver of his right to a jury trial with the waiver being filed on December

2, 2016. The trial court, prior to Laraby’s execution of the waiver, engaged him in a

discussion about his right to a jury trial and confirmed that he desired to give up this right.

The trial court, in addition, confirmed with Laraby’s counsel that Laraby and he had

discussed the arguments for and against a jury waiver.

       {¶ 2} Laraby, on November 11, 2016, filed a motion to suppress statements he

made to Huber Heights Police Officer Scott Short. The trial court did not conduct a

pretrial suppression hearing regarding Laraby’s statements to Scott, but at trial the State

did not elicit these statements. However, the trial court, though it does not appear that

a motion was filed, did, during the bench trial, conduct a suppression hearing regarding

statements Laraby made to Dayton Detective Michael Deborde. The trial court did not

issue a separate ruling concerning these statements.

       {¶ 3} The trial court conducted a bench trial on December 12, 2016 with the trial

court, upon completion of the trial, taking the case under advisement.            Laraby, on

December 16, 2016, filed a written closing argument. The trial court, on December 21,

2016, announced its decision finding Laraby guilty of the one count of felonious assault.

The trial court stated the following: “having reviewed all of the exhibits and having

reviewed [Laraby’s] written closing argument, considering all the evidence, especially the

credibility of all the witnesses, the court finds [Laraby] guilty of felonious assault.” The
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trial court ordered the preparation of a Presentence Investigation Report (PSI) and

indicated that sentencing would occur on January 3, 2017.          The trial court’s oral

pronouncement was followed by a written guilty verdict filed on December 23, 2016.

       {¶ 4} The sentencing hearing was conducted on January 17, 2017 instead of

January 3. The trial court sentenced Laraby to a four year prison term. The trial court’s

oral sentencing pronouncement was followed by the filing of a Termination Entry on

January 19, 2017. The pending appeal followed with appellate counsel being appointed.

       {¶ 5} Appellate counsel, on August 28, 2017, filed a brief under Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating he had “reviewed

the record and transcripts… and does not find any meritorious issues for appeal.”

       {¶ 6} Counsel, consistent with his duty under Anders, noted three issues he

explored but rejected. The rejected issues are: (1) ineffective assistance of counsel

based upon counsel’s failure to argue a “proper defense”; (2) the verdict was not

supported by sufficient evidence and it was against the manifest weight of the evidence;

and (3) the trial court erred by not considering self-defense or the inferior offense of

aggravated assault.      Counsel concludes the Anders brief by seeking permission to

withdraw as counsel.

       {¶ 7} In an order filed on August 31, 2017, we informed Laraby of the Anders filing

and further informed him of his right to file a pro se brief within 60 days of August 31.

Laraby did not file a brief.

       {¶ 8} We, consistent with our duty under Anders, have carefully reviewed the

record with this review including an examination of the potential errors counsel explored

but concluded lacked arguable merit. These issues are discussed below.
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          {¶ 9} The felonious assault indictment was the result – really the culmination – of

an altercation between Tracy Cooper and Laraby on January 3, 2016 at a tavern in Huber

Heights, Ohio then called 1470 West. The altercation, which began as a verbal dispute

inside the tavern, ended in the tavern’s parking lot when Laraby, without dispute, punched

Cooper in the face. Laraby, at trial, asserted the complete defense of self-defense.

Laraby further asserted that the trial court, assuming self-defense was rejected, should

find Laraby guilty of assault, a first degree misdemeanor. Laraby, finally, asserted that

the trial court should, at most, find Laraby guilty of aggravated assault, a fourth degree

felony.

          {¶ 10} Trial counsel’s asserted defenses, based upon the evidence presented,

were the potential defenses available to Laraby, and, given this, there is no arguably

meritorious claim that trial counsel provided ineffective assistance based upon a failure

to pursue a proper defense.

          {¶ 11} There is also no potential merit to an argument that the trial court erred by

not considering self-defense and the inferior offense of aggravated assault. The trial

court, when announcing the guilty verdict, stated that it had reviewed the testimony, the

exhibits, and Laraby’s written closing argument, and, based upon the trial court’s

credibility assessments, found Laraby guilty of felonious assault thereby rejecting

Laraby’s self-defense and inferior offense assertions. Further, there is not a potentially

meritorious argument that the trial court’s conclusions are not supported by the record.

          {¶ 12} Laraby, on direct examination, testified that inside the tavern Cooper

declared he was going to “kick my butt.”          Laraby further testified that Cooper was

“steadily calling me a f * * * * t and a p * * * y.” Laraby testified that at this juncture he
                                                                                              -5-


walked out of the tavern into the bar’s parking lot with Cooper following him outside.

Laraby, according to his testimony, walked to his truck and leaned into the truck’s

passenger compartment with Cooper, as this is occurring, continuing to “yell more s * * t

behind my back.” Laraby, according to his reckoning, walked back to Cooper with the

following occurring: “I was like, listen, dude, its over go back inside. He pushed me and

I turned around and hit him.” Laraby, in response to his attorney’s question concerning

whether he was in fear for his safety upon being pushed by Cooper, answered as follows:

“I mean he’d already said he was going to kick my butt once. And if you go to push me,

I’m sorry, but in my line of work, if I don’t retaliate – and I know this sounds bad – if I don’t

retaliate and I let it get into your head that I – that I’m a pushover, then it goes through

your mouth to that person to that person that I let you get away with that, all of a sudden

I have no control over my club.”            This testimony references Laraby’s part-time

employment at 1470 West performing security functions, but Laraby was not working

security on January 3. Laraby’s direct examination testimony does not further address

the topic of self-defense.

       {¶ 13} Laraby, on cross-examination, testified that his fear of Cooper – with this

fear generated by Cooper’s threat, made inside the bar, to hurt him – was also a factor in

his decision to strike Cooper.

       {¶ 14} Cooper’s testimony presented a markedly different version of events.

Cooper confirmed there was a verbal confrontation inside the tavern, and that Laraby and

he exited the bar. Cooper, however, testified that Laraby entered his truck, apparently

to drive away.    Cooper, because of Laraby’s intoxication, did not want him to drive

prompting him to yell at Laraby “you’re bagged [sic], don’t leave…” Cooper explained
                                                                                           -6-


that “bagged” is military jargon for intoxication. Laraby, according to Cooper’s rendition,

exited the truck, approached him, and accused him of calling Laraby a “f * *.” Cooper

denied using the epithet.     Cooper testified that Laraby then “got up… in my face.”

Cooper finally testified that “[t]he next thing I know… I was on the ground and I saw this

boot coming at my face, and that’s the last thing I remember.”

       {¶ 15} The State also presented the testimony of Diana Norton, a tavern patron

who, because of such patronage, knew Laraby and Cooper.                Norton observed the

interaction between the two men which occurred inside the bar, and she followed the two

men as they left the bar indicating she did so because she “did not want [Laraby and

Cooper] to get into a fight.” Norton testified that the two men exchanged pushes, but,

after this, Laraby entered his truck and began to drive away. However, Laraby, as

related by Norton, did not exit the parking lot, but, instead, stopped and exited the truck,

walked to Cooper’s location and, using his fist, struck Cooper in the face. The blow

knocked Cooper to the ground rendering him unconscious.

       {¶ 16} Self-defense is an affirmative defense with the burden being on the

defendant to establish the defense by the preponderance of the evidence. The elements

of self-defense when the force utilized is non-deadly force are (1) the defendant is not at

fault in creating the circumstances leading to the altercation and (2) the defendant had a

reasonable basis upon which to conclude, and, even if mistaken, an honest belief in such

conclusion, that he was in imminent danger of bodily harm with the only means to protect

himself being the use of force not likely to cause death or great bodily harm. State v. Fritz,

163 Ohio App.3d 276, 2005-Ohio-4736, 837 N.E.2d 823 (2d Dist.) (Citations omitted).

       {¶ 17} It was the trial court’s province to consider the testimony, evaluate
                                                                                        -7-


credibility, and then to reach the needed conclusions. There is, based upon the recited

testimony, no arguably worthy appellate contention that the trial court’s rejection of

Laraby’s self-defense assertion was erroneous. In fact, the self-defense rejection could

have been reached based upon Laraby’s testimony alone.

        {¶ 18} Laraby, turning to the issue of the inferior offense of aggravated assault,

testified, as already noted, that Cooper, while the men were inside the tavern, used vile

epithets but no physical altercation occurred at this juncture.    Laraby, during cross-

examination, testified that when Cooper and he were in the parking lot, Cooper continued

the use of disparaging comments, but that the comments did not make him angry,

indicating that “they’re just words.”     Laraby further testified, again during cross-

examination, that he became angry when Cooper pushed him stating that “[P]hysical

contact’s everything.” This anger, according to Laraby, prompted the punch to Cooper’s

face.

        {¶ 19} Aggravated assault is an inferior degree offense of felonious assault which

means that aggravated assault has the same elements as felonious assault but there is

the additional mitigating element of serious provocation. State v. Conley, 2015-Ohio-

2553, 43 N.E.3d 775 (2d Dist.), citing State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294

(1988).   A defendant is appropriately convicted of the lesser offense of aggravated

assault if his actions occurred when he is “under the influence of sudden passion or in a

sudden fit of rage… brought on by serious provocation occasioned by the victim.” R.C.

2903.12(A); State v. Deem at 210-211. The serious provocation analysis contains an

objective and a subjective component. The objective piece is whether the provocation

was sufficient to incite an ordinary person into the use of force. State v. Beatty-Jones,
                                                                                        -8-

2d Dist. Montgomery No. 24245, 2011-Ohio-3719; State v. Thornton, 2d Dist.

Montgomery No. 20652, 2005-Ohio-3744. The subjective piece is a determination of

whether the defendant actually acted “under a sudden passion or in a fit of rage.” State

v. Beatty-Jones, ¶ 22, citing State v. Thornton, ¶ 51.

       {¶ 20} There is no potentially meritorious argument that the trial court erred by

failing to find Laraby guilty of aggravated assault.      Again, it was the trial court’s

responsibility to consider the testimony, to make credibility determinations, and then to

reach the necessary conclusions.       There is simply no potentially worthy appellate

argument that the trial court, based upon the record, erred when rejecting Laraby’s

aggravated assault argument.      Laraby’s testimony, standing alone, was sufficient to

allow the trial court to conclude that Cooper’s suggested provocation did not meet either

the objective or subjective prongs of the analysis.

       {¶ 21} The next potential issue is whether there is a potentially successful

argument that the trial court’s verdict is not based upon sufficient evidence or is against

the manifest weight of the evidence.

       {¶ 22} A sufficiency of the evidence analysis focuses upon whether the State

presented adequate evidence, viewing such evidence in the light most favorable to the

State, to allow the case to be decided by, in most cases, a jury, or, in this case, a trial

judge. State v. Radford, 2d Dist. Clark No. 2016-CA-80, 2017-Ohio-8189, ¶ 14 (Citations

omitted). The State has presented sufficient evidence when “any rational trier of fact

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

Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus.
                                                                                            -9-


          {¶ 23} A manifest weight analysis, in contrast, requires an appellate court to review

the record, weigh the evidence and any reasonable inferences allowed by the evidence,

to consider witness credibility, and determine whether the trier of fact, in resolving any

evidentiary conflicts, “clearly lost its way and created such a miscarriage of justice that

the conviction must be reversed and a new trial ordered.” State v. Radford, ¶ 15. This

consideration of the evidence must be exercised with caution so that a new trial will only

be granted “in the exceptional case in which the evidence weighs heavily against the

conviction.” Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.).

          {¶ 24} A sufficiency and a manifest weight analysis involve different legal

concepts, but if it is concluded that a verdict is supported by the manifest weight of the

evidence, the evidence, by necessity, is legally sufficient.         State v. Radford, ¶ 16

(Citations omitted). Laraby, at trial, argued that the State failed to establish that Cooper

suffered serious physical harm, and, as such, he should have been convicted, assuming

he did not establish self-defense, of assault, a first degree misdemeanor. The evidence,

including Laraby’s admission during his testimony, established, without dispute, that

Laraby’s punch caused Cooper to be rendered unconscious. R.C. 2901.01(A)(5) defines

serious physical harm with this definition, pertinent to the present discussion, including

“harm… that involves some temporary, substantial incapacity.” R.C. 2901.01 (A)(5)(c).

We have determined that “[t]emporary unconsciousness constitutes a temporary

substantial incapacity, and therefore serious physical harm.” State v. Holley, 2d Dist.

Montgomery No. 27115, 2017-Ohio-7430, ¶ 54, quoting State v. Booker, 2d Dist.

Montgomery No. 22990, 2009-Ohio-1039, ¶ 16 (Citations omitted).
                                                                                         -10-


       {¶ 25} Given the undisputed testimony that Laraby’s conduct caused Cooper’s

unconsciousness, there is not a meritorious appellate argument that the trial court’s

serious physical harm conclusion is against the manifest weight of the evidence, and, as

such, there is not a potentially successful appellate argument that the serious physical

harm conclusion is not supported by sufficient evidence.

       {¶ 26} It is also concluded, based upon our independent review of the remaining

evidence and as outlined in this decision, there is no potentially worthy appellate claim

that Laraby’s conviction is otherwise against the manifest weight of the evidence, and,

given this, there is no potentially successful argument that the verdict is not otherwise

supported by sufficient evidence.

       {¶ 27} Appellate counsel did not raise the trial court’s decision, albeit

unannounced, overruling Laraby’s motion to suppress statements he made to Deborde.

Laraby requested to meet with Deborde concerning a separate, distinct criminal

investigation.   Deborde, after gaining trial counsel’s permission, met with Laraby.

Deborde informed Laraby that he was not present to discuss Laraby’s pending indictment,

and given this, he did not inform Laraby of his Miranda rights and obtain Laraby’s waiver

of these rights. Laraby, during the course of the discussion, and without prompting from

Deborde, made statements, arguably incriminating, concerning his interaction with

Cooper.

       {¶ 28} Miranda warnings are required when a person is in police custody and is

subjected to interrogation, with interrogation being any question, comment, or action likely

to elicit an incriminating response. Rhode Island v. Innis, 446 U.S 291, 100 S.Ct. 1682,

64 L.Ed.2d 297 (1980). There is, given the circumstances of the interview, no arguably
                                                                                       -11-


meritorious appellate argument that Deborde was obligated to inform Laraby of his

Miranda rights and obtain a waiver of such rights before conducting the interview with

Laraby. Further, there is no potentially worthy appellate argument that Deborde posed

any question, made any comment, or took any action that was likely to elicit an

incriminating statement from Laraby regarding his interaction with Cooper. Finally, there

is no potentially worthy appellate claim that anything surrounding Deborde’s interaction

with Laraby made Laraby’s statements regarding the incident with Cooper subject to

suppression.

      {¶ 29} We, in addition to the issues already discussed, have, consistent with our

duty under Anders, reviewed the entire record with this review including the Anders brief,

the PSI, the admitted evidence, the sentencing transcript, and the sentencing entry. This

review has not revealed any arguably meritorious appellate issues.

      {¶ 30} We have found no non-frivolous issues for appellate review. Counsel’s

motion to withdraw is granted. Accordingly, the judgment of the Montgomery County

Common Pleas Court is affirmed.



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



HALL, P.J. and WELBAUM, J., concur.


Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Charles W. Slicer, III
Jason R. Laraby
Hon. Gregory F. Singer
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