[Cite as State v. Margin, 2012-Ohio-732.]




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

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 24589
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 2010-CR-3483
v.                                                 :
                                                   :
TRAVIONNE L. MARTIN                                :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
        Defendant-Appellant                 :
                                                   :
                                                ...........

                                                OPINION

                            Rendered on the 24th day of February, 2012.

                                                ...........

MATHIAS H. HECK, JR., by JOHNNA M. SHIA, Atty. Reg. #0067685, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post Office
Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ANTONY A. ABBOUD, Atty. Reg. #0078151, Gounaris Abboud, Co., LPA, 130 West
Second Street, Suite 1818, Dayton, Oho 45402
      Attorney for Defendant-Appellant


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

HALL, J.

                {¶ 1} Travionne L. Martin appeals from his conviction and sentence on one

count of felonious assault in violation of R.C. 2903.11(A)(1).

                {¶ 2} Martin advances three assignments of error on appeal. First, he
                                                                                             2


contends the trial court erred in failing to convict him of the “lesser-included offense” of

aggravated assault. Second, he claims his felonious assault conviction is not supported by

legally sufficient evidence. Third, he argues that his conviction is against the manifest weight

of the evidence.

               {¶ 3} The record reflects that Martin was convicted following a bench trial

and sentenced to six years in prison. At trial, the victim, Dominic Flemingson, testified that he

worked for a company called Labor Ready. According to Flemingson, Labor Ready provided

day laborers to area employers who called requesting help. Each morning, interested workers

would arrive at Labor Ready’s office hoping to be sent to a job site for the day. If workers

completed their assignment and returned to Labor Ready’s office by 6:00 p.m., they would be

paid that day. On occasion, returning workers would be paid after Labor Ready’s 6:00 p.m.

closing time if there was a waiting line. Otherwise, workers who failed to return to Labor

Ready’s office by closing time could collect their paycheck the following morning.

               {¶ 4} On October 19, 2010, Labor Ready sent Martin to a construction site for

the day. According to Flemingson, who was working in Labor Ready’s office, Martin and the

employer both called him shortly before 6:00 p.m. to advise that Martin would be late

returning. Flemingson responded by reminding them that Martin would have to return by 6:00

p.m. to be paid that day. When Martin failed to arrive by that time, Flemingson locked the

office door and proceeded to complete some paperwork. Flemingson then set a front-door

alarm and exited the building. When he reached the parking lot, he noticed a pick-up truck

parked blocking the exit. Martin stepped out of the truck and approached Flemingson, asking

to be paid for his day’s work. Flemingson refused to re-open the office and told Martin to
                                                                                              3


return the next morning. The next thing Flemingson remembered was “wrestling” with Martin,

falling to the ground, and being punched repeatedly in the head and body as he tried to hold

Martin in a leg lock. Flemingson testified that he did not assault Martin. Flemingson explained

that when he told Martin to come back the following day, “that’s when the lights went out.”

               {¶ 5} Jonathan Hardin, an employee of a nearby business, testified that he

heard commotion in Labor Ready’s parking lot. He looked and saw a man standing over

Flemingson, who appeared to be unconscious. After yelling, the man threw Flemingson’s cell

phone against a wall and left in the pick-up truck that had been blocking Labor Ready’s exit.

Police arrived shortly thereafter and found Flemingson bloodied but conscious. He was

transported to an area hospital and treated for injuries that included a facial fracture,

concussion, lip laceration, chest wall contusion, rib contusion, shoulder strain, back strain, and

a facial contusion.

               {¶ 6} After being arrested, Martin spoke to police about the incident. He

denied returning to Labor Ready’s office on the evening of October 19, 2010. He told police

that he had lost his “work ticket” for the day and had never returned. At trial, however, the

State introduced a recording of a phone call Martin made to his girlfriend while in jail. During

the conversation, Martin acknowledged that his girlfriend had warned him not to get out of the

pick-up truck to confront Flemingson. He also assured her that he would not beat up anyone

else.

               {¶ 7} Martin did not testify at trial or present any defense. Following the

presentation of the State’s evidence, defense counsel argued that the proper charge against

Martin was aggravated assault because he had acted under “the influence of sudden passion or
                                                                                                                                         4


sudden fit of rage caused by provocation of the victim.” The trial court rejected this argument,

found Martin guilty of felonious assault, and imposed a six-year prison sentence. This appeal

followed.

                     {¶ 8} In his first assignment of error, Martin contends the trial court erred in

failing to find him guilty of aggravated assault as a “lesser-included offense” of felonious

assault.1 This argument lacks merit. “[F]elonious assault is reduced to aggravated assault if

the offender is ‘under the influence of sudden passion or in a sudden fit of rage * * * brought

on by serious provocation occasioned by the victim.’ ‘Provocation, to be serious, must be

reasonably sufficient to bring on extreme stress[,] and the provocation must be reasonably

sufficient to incite or to arouse the defendant into using deadly force.’” State v. Crawford, 2d

Dist. Montgomery App. No. 22314, 2008-Ohio-4008, ¶13 (citations omitted).

                     {¶ 9} We see no evidence that Flemingson provoked Martin sufficiently to

incite the use of deadly force. In support of his argument, Martin contends his sole source of

income was Labor Ready and that he previously had been paid after closing time. He also

notes that he called Flemingson to inquire about being paid. Finally, Martin points out that

Flemingson tried to hold him in a leg lock during the altercation. According to Martin, these

facts establish sufficient “provocation” for an aggravated assault conviction. We disagree.

Martin’s argument that the evidence showed “serious provocation” by Flemingson borders on

being frivolous. The test for “serious provocation” is both objective and subjective. State v.

Harding, 2d Dist. Montgomery App. No. 24062, 2011-Ohio-2823, ¶42. Under the objective

            1
             Aggravated assault is not, technically, a “lesser-included offense” of felonious assault. Rather, it is an “inferior-degree offense.”
 State v. Crawford, 2d Dist. Montgomery App. No. 22314, 2008-Ohio-4008, ¶12 (citations omitted). Nevertheless, we will proceed with an
 analysis of Martin’s assignment of error.
                                                                                              5


test, Flemingson’s actions in the present case were not enough to arouse the passions of an

ordinary person beyond his or her control. Id. Even if there had been sufficient evidence of

provocation in an objective sense, the defendant did not testify and there is absolutely no

evidence he was subjectively acting under serious provocation. The trial court properly

declined to find Martin guilty of aggravated assault. The first assignment of error is overruled.

       {¶ 10} Martin’s remaining two assignments of error challenge the legal sufficiency

and manifest weight of the evidence. With regard to sufficiency, Martin contends the State

presented legally insufficient evidence to prove that he knowing caused serious physical harm

to Flemingson. Martin suggests that Flemingson’s testimony leaves open the possibility

Flemingson was the aggressor and that Martin merely acted defensively. With regard to the

weight of the evidence, Martin similarly claims the evidence does not support a finding that he

acted “knowingly” when he caused serious physical harm. This is so, Martin reasons, because

Flemingson could not recall precisely what happened during the altercation.

       {¶ 11} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the verdict

as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2000). “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
                                                                                                  6


paragraph two of the syllabus.

       {¶ 12} Our analysis is different when reviewing a manifest-weight argument. When a

conviction is challenged on appeal as being against the weight of the evidence, an appellate

court must review the entire record, weigh the evidence and all reasonable inferences, consider

witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541. A judgment should be reversed as being against the manifest

weight of the evidence “only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶ 13} With the foregoing standards in mind, we conclude that Martin’s conviction is

supported by legally sufficient evidence and is not against the manifest weight of the evidence.

The State presented legally sufficient evidence to support a finding that Martin knowingly

caused serious physical harm to another in violation of R.C. 2903.11(A)(1). Flemingson

testified that he did not assault Martin. Flemingson also testified that Martin repeatedly

punched him in the head and body before “the lights went out” and he lost consciousness.

Hardin heard the commotion and saw Martin yelling as he stood over Flemingson’s

motionless body. Martin’s assault caused Flemingson to suffer a facial fracture, a concussion,

and other injuries. While in jail, Martin assured his girlfriend that he would not beat up anyone

else. This evidence, if believed, is legally sufficient to convict Martin of felonious assault.

       {¶ 14} Martin’s claim that the State failed to prove he was the aggressor does not

persuade us otherwise. Flemingson testified that he did not assault Martin, and Martin did not
                                                                                            7


raise self-defense as an affirmative defense. We note too that “[s]elf-defense does not negate

the elements of felonious assault but is, instead, a justification defense * * *.” State v.

Johnson, 8th Dist. Cuyahoga App. No. 76600, 2000 WL 1844747, at *3 (Dec. 14, 2000). Thus,

when determining whether the State presented legally sufficient evidence to support a

conviction, we do not consider evidence of self-defense. See, e.g., State v. Hancock, 108 Ohio

St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, ¶37 (citation omitted) (recognizing that “the due

process ‘sufficient evidence’ guarantee does not implicate affirmative defenses, because proof

supportive of an affirmative defense cannot detract from proof beyond a reasonable doubt that

the accused had committed the requisite elements of the crime”).

       {¶ 15} We are equally unpersuaded by Martin’s argument regarding the weight of the

evidence. Although Flemingson had no recollection of the details of the assault, the trial court

reasonably inferred that Martin acted “knowingly” when he caused serious physical harm.

“[A] person acts knowingly when he is aware that his conduct will probably cause a certain

result.” State v. Al Hanandeh, 2d Dist. Montgomery App. No. 22976, 2009-Ohio-5613, ¶50.

Flemingson testified that he remembered Martin repeatedly punching him in the head and

body. The assault left Flemingson bloodied and unconscious. In light of this evidence, the trial

court did not clearly lose its way in finding that Martin knowingly caused serious physical

harm. The evidence does not weigh heavily against Martin’s conviction. His second and third

assignments of error are overruled.

       {¶ 16} The judgment of the Montgomery County Common Pleas Court is affirmed.

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

FAIN and DONOVAN, JJ., concur.
                        8




Copies mailed to:

Mathias H. Heck
Johnna M. Shia
Antony A. Abboud
Hon. Frances E. McGee
