[Cite as State v. Dailey, 2015-Ohio-290.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :
        Plaintiff - Appellee                :       Hon. W. Scott Gwin, P.J.
                                            :       Hon. Sheila G. Farmer, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
MATTHEW J. DAILEY                           :       Case No. 2014 AP 06 0021
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Tuscarawas County
                                                    Court of Common Pleas, Case No.
                                                    2013 CR 10 0221



JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   January 26, 2015



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ROBERT C. URBAN JR.                                 MARK A. PERLAKY
Assistant Prosecuting Attorney                      Tuscarawas County Public Defender
125 E. High Avenue                                  153 N. Broadway St.
New Philadelphia, OH 44663                          New Philadelphia, OH 44663
Tuscarawas County, Case No. 2014 AP 06 0021                                                    2



Baldwin, J.

       {¶1}   Defendant-appellant Matthew Dailey appeals his conviction and sentence

from the Tuscarawas County Court of Common Pleas on one count of felonious assault.

Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   On October 15, 2013, the Tuscarawas County Grand Jury indicted

appellant on one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of

the second degree. At his arraignment on October 16, 2013, appellant entered a plea of

not guilty to the charge.

       {¶3}   Appellant, on April 3, 2014, filed a Motion to Exclude Prior Bad Acts.

Appellant, in his motion, asked that the trial court exclude mention of any conviction of

assault and any mention of appellant saying that he was a fighter or participated in fight

training and/or competitions.     Prior to the commencement of trial on April 8, 2014,

appellee indicated that it would not be presenting evidence of a prior bad act. The trial

court stated to defense counsel that “should there be something that comes out in

testimony that you believe implicates [Evid.R.] 404 then of course we’ll stop, remove the

jury, have an argument and I’ll make a ruling.” Transcript at 9.

       {¶4}   At trial, Kelly Nalley, a barmaid at D Kay’s Bar and Grill, testified that she

was working on the evening of September 11, 2013. She testified that she knew Clay

Clark, the victim in this case, because he came in often for their karaoke nights. Clark

was in the bar on the night in question. According to Nalley, appellant came into the bar

for the first time that night near closing time with two girls, one whom she knew. Nalley

testified that the three of them sat around and that when she spoke with appellant at the
Tuscarawas County, Case No. 2014 AP 06 0021                                                   3


juke box, appellant told her that he liked confrontation, that he was “a bad ass”, and that

he liked to fight. Transcript at 171.

       {¶5}   At some point, Clark bought drinks for everyone. According to Nalley,

there was a brief exchange between appellant and Clark involving a dispute about the

two men’s employment, but the matter was resolved. Appellant, Clark and the two girls

then played pool together, danced and talked. When asked to describe Clark, Nalley

testified that he was a “sweet man“ who shook hands with people who came into the bar

and befriended everyone. Transcript at 173. She testified that she was giving Clark a

ride home that evening at the close of business, and that they were walking appellant

and the two girls out the door. Nalley testified that when Clark extended his hand to

appellant, appellant punched him in the nose and knocked him out. Clark then fell to

the ground. When asked, she stated that there had not been any physical contact

between the two prior to such time. Nalley further testified that Clark had no recollection

of what happened.

       {¶6}   On cross-examination, Nalley testified that Clark came in a couple of times

a week and had six or eight beers and four or five Vegas bombs, which is a mixture of

Crown Royal, Red Bull and Peach Schnapps. She testified that Clark had been at the

bar from approximately 8:00 p.m. until 2:00 a.m. Nalley testified that she did not hear

appellant whistle for either woman who were with him. She further admitted that in her

written statement to police, she did not mention that appellant had bragged about liking

confrontation.

       {¶7}   The next witness to testify was Kimberly Taylor. She testified that she

knew Tara Everhart, who was her neighbor and friend. Taylor testified that on
Tuscarawas County, Case No. 2014 AP 06 0021                                                4


September 11, 2013, she and Everhart picked up appellant, who she had never met

prior to that evening. The three of them went to D Kay’s where they hung out with Clark

and a man named Cruz. The following is an excerpt from her testimony:

      {¶8}   Q:   During the course of the evening did you get the impression he,

[appellant] was hitting on your or trying to impress you?

      {¶9}   A: Well, he talked about like fighting and that he was a bad ass I guess. I

don’t know. There was a lot of conversation and unnecessary comments made I guess

that made me feel uncomfortable that night.

      {¶10} Q: What kind of comments?

      {¶11} A:     Just about him fighting and how he has knocked people out before

and it just made me feel kind of unsure of my surroundings because I wasn’t sure how

he was going to react.

      {¶12} Transcript at 216. Taylor, when asked about Clark, testified that he was

very nice and respectful and was generous.

      {¶13} According to Taylor, when closing time came, appellant whistled for her to

come and Clark asked “Did he just call you ladies like dogs.” Transcript at 218. Clark

then insisted on walking her to the car. She stated that Clark was putting out his right

hand to say goodbye to Everhart when appellant punched him in the face. Taylor

indicated that there had not been any fight or words exchanged prior to the punch.

Appellant then yelled at the two women to get the car and they left in Everhart’s car.

Appellant was driving at the time. The three then went to appellant’s house where they

changed clothes and then left in his truck and went to Denny’s.
Tuscarawas County, Case No. 2014 AP 06 0021                                                 5


       {¶14} On cross-examination, Taylor testified that appellant “came off a little bit

aggressive”, but she did not feel fearful around him. Transcript at 231.

       {¶15} Testimony was adduced at trial that Clark told a doctor at the emergency

room that he thought that he had been assaulted by two people while working as a

bouncer at a bar and that he had lost consciousness for ten minutes. He claimed that he

had been punched and kicked in the chest, but x-rays showed no chest injury. Clark

was diagnosed with a subdural hematoma. He also had a nasal bone fracture and a

tooth knocked out. He later was seen by a neurosurgeon. Appellant had told friends

who drove him to the emergency room that he could not remember what had happened

and that he had been jumped when he walked out of the bar.

       {¶16} Deputy Travis Stocker of the Tuscarawas County Sheriff’s Office testified

that he was dispatched to the hospital in response to a call that an individual had been

assaulted at D Kay’s bar. He testified that he spoke with Clark who appeared to be

disoriented and who indicated that he did not have much recollection of his injuries.

Clark told the officer that when he stuck his hand out to shake appellant’s hand, he was

struck in the face. Later on, Clark told Deputy Stocker that he thought that there had

been a second assailant. Deputy Stocker testified that Clark was confused.

       {¶17} The next witness to testify was the victim, Clay Clark. Clark testified that

on the evening in question, his relationship with appellant and the two women was

cordial. He testified that he did not remember anything after he extended his hand to

shake appellant’s hand and that he next remembered waking up on the concrete. He

was unable to recall telling hospital personnel what had happened. Clark testified that

he had never worked as a bouncer and did not remember saying that he did or that
Tuscarawas County, Case No. 2014 AP 06 0021                                                   6


there were two assailants. When asked if he believed that there were two assailants,

Clark indicated that he did not.

       {¶18} On cross-examination, Clark stated that he did not recall hearing appellant

make some kind of whistle or commenting on the same. He also testified that he did not

recall telling the doctor at the hospital that he had been assaulted before during multiple

confrontations and had lost consciousness. He testified that he had not been in multiple

other confrontations before in which he had been assaulted.

       {¶19} After the State rested, appellant called Dr. Allan Atienza, an emergency

room doctor who consulted with Clark shortly after the incident. The doctor testified that

Clark reported being attacked by two known males who kicked him in the head. On

cross-examination, he testified that he concluded that Clark had intracranial

hemorrhage and nasal bone fractures. He, when asked, testified that it was possible for

someone with an intracranial hemorrhage to have confusion issues and memory

problems.

       {¶20} Appellant testified on his own behalf. He refuted saying to the bartender

that he liked confrontation. Appellant also testified that after he whistled for Kimberly

Taylor to leave, Clark became “very agitated and he stood up and you could hear his

raised voice, he said,….’is he really gonna fuckin whistle for you like dogs?’” Transcript

at 403. He further testified that before he reached the car, he heard the bartender yell

to come back and “’Don’t be disrespectful like that. Come back here’.” Transcript 405.

According to appellant, he was almost to his car when he felt a pressure on the left side

of his head and turned around swinging blindly, striking Clark. He stated that he did not

know that it was Clark at the time. When asked, he stated that Clark had not given him
Tuscarawas County, Case No. 2014 AP 06 0021                                                      7


any problems that evening and that he was surprised that Clark hit him on the back of

his head.

       {¶21} At the conclusion of the evidence and the end of deliberations, the jury, on

April 9, 2014, found appellant guilty of felonious assault. Pursuant to a Judgment Entry

filed on May 28, 2014, appellant was sentenced to four years in prison.

       {¶22} Appellant now raises the following assignment of error on appeal:

       {¶23} THE TRIAL COURT ERRED IN ALLOWING TESTIMONY THAT

APPELLANT HAD BRAGGED ABOUT BEING A FIGHTER, AS SAID TESTIMONY

WAS IMPROPER CHARACTER EVIDENCE UNDER EVIDENCE RULE 404(A) AND

(B) AND IRRELEVANT UNDER EVIDENCE RULE 402.

       {¶24} THE JURY’S VERDICT OF GUILTY WAS BASED ON SUFFICIENT

EVIDENCE.

       {¶25} THE JURY’S VERDICT OF GUILTY WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

                                                  I

       {¶26} Appellant, in his first assignment of error, argues that the trial court erred

in allowing testimony that appellant had bragged about being a fighter since such

testimony was improper character evidence under Evid. R. 404(A) and (B) and

irrelevant under Evid.R. 402.

       {¶27} The admission or exclusion of evidence is a matter left to the sound

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343

(1987). Absent an abuse of discretion resulting in material prejudice to the defendant, a

reviewing court should be reluctant to interfere with a trial court's decision in this regard.
Tuscarawas County, Case No. 2014 AP 06 0021                                                   8

State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). Our task is to look at

the totality of the circumstances and determine whether the trial court acted

unreasonably, arbitrarily, or unconscionably in allowing or excluding the disputed

evidence. State v. Rogers, 5th Dist. Richland No. 07 CA 106, 2008-Ohio-6630, ¶ 17,

citing State v. Oman, 5th Dist. Stark No. 1999CA00027, 2000 WL 222190 (Feb. 14,

2000).

         {¶28} Evid.R. 404(A) provides that evidence of a person's character is not

admissible to prove the person acted in conformity with that character. Evid. R. 404(B)

sets forth an exception to the general rule against admitting evidence of a person's

other bad acts. The Rule states:

         {¶29} “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

         {¶30} We concur with appellee that testimony that appellant bragged about liking

to fight on the night in question is not evidence of appellant’s character or evidence of a

bad act. Rather, such testimony related to statements made by appellant to witnesses

on the night in question. With respect to Evid.R. 404(B), at trial, defense counsel himself

conceded at one point that he did not believe that Evid.R. 404(B) was applicable.

Moreover, assuming that such rule is applicable and that appellant’s comments were

evidence of other crimes, wrongs, or acts, we find that such evidence falls within the

exception set forth in Evid.R. 404(B). Appellant was convicted of felonious assault

pursuant to R.C. 2903.11(A). Such section states as follows: (A) No person shall
Tuscarawas County, Case No. 2014 AP 06 0021                                                    9


knowingly do either of the following: (1) Cause serious physical harm to another or to

another's unborn;..” (Emphasis added).

       {¶31} In the case sub judice, appellant testified that he thought that someone

had hit him and that he swung blindly, striking Clark. Appellant’s statements that he

liked to fight and was a “bad ass” were relevant to prove that appellant had guilty

knowledge and that appellant did not mistakenly or accidentally strike the victim in this

case. Finally, assuming, arguendo, that the admission of appellant’s statements was in

error, we find that appellant was not prejudiced by the admission of the same. Two

witnesses (Nalley and Taylor) and the victim all testified that appellant assaulted the

victim without provocation.

       {¶32} Appellant’s first assignment of error is, therefore, overruled.

                                               II, III

       {¶33} Appellant, in his second and third assignments of error, argues that his

conviction for felonious assault was against the sufficiency and manifest weight of the

evidence. We disagree.

       {¶34} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held,

                     An appellate court's function when reviewing the

              sufficiency of the evidence to support a criminal conviction is
Tuscarawas County, Case No. 2014 AP 06 0021                                                   10


             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.

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

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

      {¶36} Appellant was convicted of felonious assault in violation of R.C.

2903.11(A) which provides, in relevant part, as follows “No person shall knowingly do

either of the following: (1) Cause serious physical harm to another …” Based on the

testimony set forth in detail in the statement of facts above, we find that, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found that appellant knowlingly caused physical harm to Clark.
Tuscarawas County, Case No. 2014 AP 06 0021                                                  11


       {¶37} We further find that the jury did not lose its way in convicting appellant.

While appellant contends that the testimony of the witnesses was not credible and was

contradictory, the jury, as trier of fact, was in the best position to assess credibility.

Appellant further maintains that the victim’s testimony was questionable because he

was unable to recall what had happened when appellant allegedly struck him and told

medical personnel things (i.e. that he was a bouncer) that were clearly untrue or were

contradicted by other testimony. However, we note that, at trial, there was medical

testimony that the victim’s confusion and memory loss could result from loss of

consciousness.

       {¶38} Based on the foregoing, appellant’s second and third assignments of error

are overruled.

       {¶39} Accordingly, the judgment of the Tuscarawas County Court of Common

Pleas is affirmed.


By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.
