[Cite as State v. Higgins, 2012-Ohio-5650.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26120

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
THOMAS D.C. HIGGINS                                  COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 11 02 0487

                                 DECISION AND JOURNAL ENTRY

Dated: December 5, 2012



        MOORE, Judge.

        {¶1}     Defendant-Appellant, Thomas Higgins, appeals from his conviction in the

Summit County Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     Charles Ryan Milgrim and Jack Austin Milgrim (collectively, “the Milgrims”) are

brothers. On the evening of February 13, 2011, Mr. Higgins met the Milgrims to sell them one

pound of marijuana. When the Milgrims drove to meet Mr. Higgins to consummate the sale, Mr.

Higgins and a friend entered the backseat of the Milgrims’ car. C.R. Milgrim then drove a short

distance. The end result of the meeting of the four men was that J.A. Milgrim sustained a single

gunshot wound. According to the Milgrims, the backseat passenger directly behind J.A. Milgrim

attempted to steal the Milgrims’ money. Before any sale could occur, he produced a gun and

shot J.A. Milgrim when he refused to hand over the money. According to Mr. Higgins, J.A.

Milgrim produced a gun, attempted to take the marijuana from Mr. Higgins before any sale could
                                                 2


occur, and engaged in a struggle with Mr. Higgins’ friend. Mr. Higgins claimed that he fled the

car as the gun went off, while C.R. Milgrim told the police that Mr. Higgins was the man who

had shot his brother. When the police located Mr. Higgins several hours later, he initially told

them that he had been at his grandmother’s house for the entire evening.

       {¶3}    A grand jury indicted Mr. Higgins on each of the following counts: (1) aggravated

robbery, with an attendant firearm specification; (2) felonious assault, with an attendant firearm

specification; and (3) having weapons while under disability. A jury trial took place, at the

conclusion of which the jurors indicated that they could not reach a verdict on the aggravated

robbery count. The State ultimately dismissed that count after the court declared a hung jury.

As to the other two counts, the jury found Mr. Higgins not guilty of having weapons while under

disability, but guilty of felonious assault and the attendant firearm specification. The court

sentenced Mr. Higgins to a total of eight years in prison.

       {¶4}    Mr. Higgins now appeals from his conviction and raises three assignments of

error for our review.

                                                II.

                                 ASSIGNMENT OF ERROR I

       [MR. HIGGINS] WAS NOT AFFORDED A FAIR TRIAL AND A RIGHT TO
       EFFECTIVE COUNSEL, AS GUARANTEED BY THE SIXTH AMENDMENT
       OF THE UNITED STATES CONSTITUTION.

       {¶5}    In his first assignment of error, Mr. Higgins argues that he received ineffective

assistance of counsel because his trial counsel never filed any pretrial motions, including motions

for discovery. We disagree.

       {¶6}    This Court must analyze claims of ineffective assistance of counsel under a

standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);
                                                  3


State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)

deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial * * *.” Strickland at 687. A

defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is a

reasonable probability that the outcome of the trial would have been different. Id. at 694. In

applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance * * *.” Id. at 689.

       {¶7}    Mr. Higgins argues that his trial counsel was ineffective because he did not file

any pretrial motions. According to Mr. Higgins, his counsel’s failure to file a demand for

discovery relieved the State of its duty to comply with Crim.R. 16. Mr. Higgins argues that he

was prejudiced by his counsel’s performance because “it can only be assumed that witness

statements, law enforcement reports, and whatever out there may exist regarding this case was

not provided to defense counsel * * *.”

       {¶8}    The fact that defense counsel did not file any pre-trial motions does not support a

finding of per se prejudice. There is no evidence in the record that discovery did not occur in

this case. Indeed, at the final pre-trial hearing, the trial court noted on the record that one reason

it had continued an earlier trial date was so that the parties could accomplish “some additional

discovery that we discussed at side bar.” For the parties to conduct additional discovery,

discovery must have occurred. By local rule, open-file discovery is mandated in all criminal

cases litigated in the Summit County Court of Common Pleas. S.C.C. Rule 21.06.

       {¶9}    Moreover, Mr. Higgins cannot point this Court to any actual piece of evidence he

did not receive in discovery. Instead, he asks this Court to “assume[] * * * whatever out there
                                                 4


may exist * * * was not provided to defense counsel * * *.” This Court is confined to the record

on appeal and may not engage in assumptions to sustain an ineffective assistance of counsel

argument. When “allegations of the ineffectiveness of counsel are premised on evidence outside

the record, * * * the proper mechanism for relief is through the post-conviction remedies of R.C.

2953.21, rather than through a direct appeal.” State. v. Sweeten, 9th Dist. No. 07CA009106,

2007-Ohio-6547, ¶ 12. Mr. Higgins has not shown that he suffered any actual prejudice as a

result of his counsel’s decision not to file any formal pre-trial motions. See Strickland, 466 U.S.

at 694. Consequently, his first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN NOT GRANTING [MR. HIGGINS’]
       MOTION FOR ACQUITTAL PER OHIO CRIM.[R.]29 BECAUSE THE STATE
       FAILED TO PRESENT SUFFICIENT EVIDENCE TO FIND HIM GUILTY
       [OF] FELONIOUS ASSAULT PER R.C. 2903.11.

       {¶10} In his second assignment of error, Mr. Higgins argues that his felonious assault

conviction is based on insufficient evidence. Specifically, he argues that the State failed to prove

the serious physical harm and mens rea elements of the offense. We disagree.

       {¶11} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. No. 24769, 2010-

Ohio-634, ¶ 33. In order to determine whether the evidence before the trial court was sufficient

to sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. 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.
                                                5


Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins at 386.

       {¶12} The State charged Mr. Higgins with felonious assault under two alternative

subdivisions. Pursuant to those subdivisions, “[n]o person shall knowingly * * * (1) [c]ause

serious physical harm to another * * *[, or] (2) [c]ause or attempt to cause physical harm to

another * * * by means of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(1)-(2).

“A person acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).

“Serious physical harm” to a person includes:

       (c) Any physical harm that involves some permanent incapacity, whether partial
       or total, or that involves some temporary, substantial incapacity; [and]

       ***

       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5)(c), (e). “Physical harm” means “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).

       {¶13} C.R. Milgrim testified that he arranged to buy marijuana from Mr. Higgins

through a mutual contact. The two spoke on the phone a few times before Mr. Higgins gave

C.R. Milgrim driving directions and the two arranged a meeting. The Milgrims then drove their

mother’s car to the arranged location. When they arrived, C.R. Milgrim testified, Mr. Higgins

and another man climbed into the back of their car with a bag. C.R. Milgrim then drove a short

distance away. When he stopped the car, his brother removed an envelope with money from the

car’s glove box and began to count the money. C.R. Milgrim testified that the drug buy never

took place because Mr. Higgins pulled out a gun and tried to forcibly take the money from his
                                                   6


brother. When his brother refused to hand over the money, Mr. Higgins shot him. Mr. Higgins

and the other man in the backseat then fled.

       {¶14} J.A. Milgrim also testified that he and his brother drove to a pre-arranged meeting

in order to purchase marijuana and that, when they arrived at the meeting place, two men got into

the backseat of their car. J.A. Milgrim also saw one of the men bring a bag into the car. Much

like his brother, J.A. Milgrim recalled driving a short distance once everyone was in the car and

then removing the money he had placed in the glove box to count it. He also recalled that the

backseat passenger directly behind him tried to grab the money and pulled out a gun. When J.A.

Milgrim refused to let go of the money, the backseat passenger shot him. The bullet passed

through the back of his left shoulder and out through his chest.

       {¶15} J.A. Milgrim testified that his arm immediately went numb upon getting shot.

After his brother called 911, he was taken by ambulance to the hospital where he remained for

two weeks and received treatment for a collapsed lung, broken rib, and nerve damage. He

testified that, as of the time of trial, he continued to have pain from his nerves healing. He

testified that he was able to use his arm again after ten weeks of physical therapy, but had not yet

regained full function of all the fingers on his left hand.

       {¶16} Mr. Higgins first argues that his felonious assault conviction is based on

insufficient evidence because the State failed to prove that he caused J.A. Milgrim serious

physical harm.      Specifically, he argues that there was no testimony from any medical

professional in order to establish that J.A. Milgrim’s injuries amounted to serious physical harm.

       {¶17} Mr. Higgins fails to set forth any law that the State was required to present expert

medical testimony to prove serious physical harm. See App.R. 16(A)(7). On the contrary, this

Court has held that “‘serious physical harm’ can be inferred under R.C. 2901.01(A)(5) ‘[w]here
                                                  7


injuries are serious enough to cause [the victim] to seek medical treatment * * *.’” State v.

Sales, 9th Dist. No. 25036, 2011-Ohio-2505, ¶ 19, quoting State v. Lee, 8th Dist. No. 82326,

2003-Ohio-5640, ¶ 24. J.A. Milgrim testified that he sustained a gunshot wound, which caused

him to be hospitalized for two weeks. He further testified that he suffered a collapsed lung,

broken rib, and nerve damage as a result of the gunshot, and still had nerve damage in his hand

as of the time of trial. Viewing the evidence in a light most favorable to the State, a rational trier

of fact could have found that the State set forth sufficient evidence that J.A. Milgrim suffered

physical harm that either involved a temporary incapacity or prolonged pain.                See R.C.

2901.01(A)(5)(c), (e). Accordingly, we do not agree that the State failed to present sufficient

evidence of serious physical harm.

       {¶18} With regard to Mr. Higgins’ serious physical harm argument, we note that he was

charged in the alternative and convicted of a violation of R.C. 2903.11(A)(1)/(2). Mr. Higgins

does not address R.C. 2903.11(A)(2) in his sufficiency argument, despite having been convicted

under that subdivision. R.C. 2903.11(A)(2) only requires proof of physical harm caused by a

deadly weapon or dangerous ordnance. See R.C. 2901.01(A)(2) (“physical harm” defined as

“any injury, * * * regardless of its gravity or duration”). The victim here clearly suffered an

injury, and the jury specifically found that Mr. Higgins displayed, brandished, indicated that he

possessed, or used a firearm to facilitate his felonious assault offense. Thus, while we have

already concluded that the record contains sufficient evidence of serious physical harm, R.C.

2903.11(A)(2) provides a separate basis for upholding Mr. Higgins’ felonious assault conviction.

       {¶19} Next, Mr. Higgins argues that his felonious assault conviction is based on

insufficient evidence because the State failed to prove that he possessed the requisite mens rea

for the offense. For Mr. Higgins to have acted knowingly, he need not have intended to cause
                                                 8


serious physical harm. “Rather, for the law to hold him to have acted ‘knowingly,’ it is only

necessary that the serious physical harm [was] a ‘reasonable and probable’ result of his action.”

State v. Murphy, 9th Dist. No. 24753, 2010-Ohio-1038, ¶ 20, quoting State v. Powell, 11th Dist.

No. 2007-L-187, 2009-Ohio-2822, ¶ 52. The victim here testified that he was shot at close range

by the backseat passenger in his mother’s car after he refused to hand over his money. C.R.

Milgrim, the victim’s brother, identified Mr. Higgins as the shooter and also testified that Mr.

Higgins shot his brother after his brother refused to give him money. Viewing the evidence in a

light most favorable to the State, there was sufficient evidence from which a rational trier of fact

could conclude that the serious physical harm the victim sustained was the reasonable and

probable result of Mr. Higgins’ actions. Mr. Higgins’ argument to the contrary consists of a

blanket statement that the State “failed to meet the mens rea element of Felonious Assault to the

jury – that being that he knowingly caused serious physical harm.” He does not challenge any of

the specific evidence introduced or explain why the State failed to produce evidence that he

acted knowingly. As this Court has repeatedly held, “[i]f an argument exists that can support

[an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th

Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998). Absent any reasoned argument to the

contrary, this Court will not engage in any additional analysis on Mr. Higgins’ behalf. Mr.

Higgins’ second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       [MR. HIGGINS’] CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE BECAUSE THE JURY CLEARLY LOST ITS WAY AND
       CREATED SUCH A MANIFEST MISCARRIAGE OF JUSTICE THAT HIS
       CONVICTION MUST BE REVERSED.

       {¶20} In his third assignment of error, Mr. Higgins argues that his conviction is against

the manifest weight of the evidence. We disagree.
                                                 9


       {¶21} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.

Therefore, this Court’s “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). See also Otten at 340.

       {¶22} Mr. Higgins argues that his felonious assault conviction is against the manifest

weight of the evidence because the jury lost its way by believing the testimony of the Milgrims

over that of Mr. Higgins. Mr. Higgins testified in his own defense and admitted meeting the

Milgrims on February 13, 2011, to take part in a drug buy. Mr. Higgins gave the elder brother

driving directions and met the Milgrims at their car when they arrived. He then entered the car

along with his friend, Marcus Junius, carrying a bag in which Mr. Higgins testified he had placed

one pound of marijuana. Mr. Higgins stated that he sat behind the driver of the car and Mr.

Junius sat behind the front seat passenger. According to Mr. Higgins, he did not bring a gun

with him into the car. Instead, Mr. Higgins claimed that J.A. Milgrim was the one who displayed

a gun in the car and tried to force Mr. Higgins and his friend Mr. Junius to hand over the
                                                10


marijuana that they had brought. At that point, Mr. Higgins testified, Mr. Junius grabbed the gun

and he and J.A. Milgrim fought over it. The driver then attempted to get involved and Mr.

Higgins held him back. Once the driver was able to escape from Mr. Higgins’ grip, however,

Mr. Higgins exited the car. Mr. Higgins stated that he heard a gunshot at the point that he

stepped out of the car. He then ran away.

       {¶23} When the police later searched the Milgrims’ car, they found the bag that Mr.

Higgins had brought into the car with him. Although the bag contained a shoebox and several

papers, it did not contain any marijuana. C.R. Milgrim testified that he looked through the bag

directly after the shooting and only found a shoebox filled with paper. Neither of the Milgrims

testified that a struggle took place in the car before the shooting occurred. Instead, they both

testified that the backseat passengers demanded money from J.A. Milgrim after he began to

count it and, when he refused to hand it over, the man directly behind J.A. Milgrim shot him.

C.R. Milgrim specifically identified Mr. Higgins as the man who shot his brother.

       {¶24} The police were able to locate Mr. Higgins within several hours of the shooting

and interviewed him at the police station. Mr. Higgins first told the police that he had not been

involved in a shooting because he had been at his grandmother’s house the entire evening with a

friend. He also told the police that he did not have the cell phone that matched the number the

Milgrims had dialed earlier that day because he had lost that phone sometime during the previous

month. Only after the police indicated that Mr. Higgins would be charged did Mr. Higgins admit

that he had been present at the time of the shooting and still had his cell phone. According to

Mr. Higgins, he did not bring a gun with him to meet the Milgrims and did, in fact, have a pound

of marijuana with him in the car directly before the shooting.
                                                 11


       {¶25} Mr. Higgins argues that the jury lost its way in convicting him because his

testimony was more credible than that of the Milgrims. As support that his testimony was more

credible, Mr. Higgins points to the fact that the Milgrims actively tried to deceive the police after

the shooting by removing several incriminating items from their car. Upon searching the area

where the Milgrims’ car had been parked, the police found a marijuana pipe and scale. Yet, J.A.

Milgrim admitted that he threw the items from the car after he had been shot because he did not

want the items in the car. Moreover, Mr. Higgins attempted to deceive law enforcement by

telling officers that he had been at his grandmother’s house at the time of the shooting and had

lost his cell phone.

       {¶26} This Court has held that the weight to be given to the evidence and the testimony

of each witness falls squarely within the province of the trier of fact. State v. Witcher, 9th Dist.

No. 26111, 2012-Ohio-4141, ¶ 14, quoting State v. DeHass, 10 Ohio St.2d 230 (1967),

paragraph one of the syllabus. The fact-finder “is free to believe all, part, or none of the

testimony of each witness.” State v. Cross, 9th Dist. No. 25487, 2011-Ohio-3250, ¶ 35, quoting

Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, ¶ 35. Here, the jury chose to

believe the testimony of the Milgrims over that of Mr. Higgins. Based on our review of the

record, we cannot conclude that the jury lost its way by doing so. This is not the exceptional

case where the “evidence weighs heavily against the conviction.” Martin, 20 Ohio App.3d at

175. Consequently, Mr. Higgins’ argument that his felonious assault conviction is against the

manifest weight of the evidence lacks merit. His third assignment of error is overruled.

                                                III.

       {¶27} Mr. Higgins’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.
                                                12


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JANA DELOACH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
