[Cite as State v. Foster, 2018-Ohio-3569.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 106554



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   DAYMOND FOSTER
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-618153-A

        BEFORE:           McCormack, P.J., E.T. Gallagher, J., and Boyle, J.

        RELEASED AND JOURNALIZED: September 6, 2018
ATTORNEY FOR APPELLANT

James M. Price, Jr.
1496 Westford Circle, Apt. 203
Westlake, OH 44145


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Andrew T. Gatti
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

      {¶1}    Defendant-appellant Daymond Foster (“Foster”) appeals his felonious

assault conviction, arguing that it was both against the manifest weight of the evidence

and supported by insufficient evidence. For the reasons that follow, we affirm Foster’s

conviction.

Procedural and Substantive History

      {¶2} On June 13, 2017, Foster was indicted by a Cuyahoga County Grand Jury

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

aggravated robbery in violation of R.C. 2911.01(A)(3).   These charges stemmed from an

incident on June 7, 2017.

      {¶3} Foster and the victim, Ralph Ronsky (“Ronsky”), were together on the

evening of June 6, 2017, when they went with a third man to Home Depot. At Home

Depot, Ronsky returned cable and received a gift card in exchange for the cable.

According to Foster, Ronsky owed him money for a portion of the gift card and for drugs.

      {¶4} In the early hours of the morning on June 7, 2017, Foster confronted

Ronsky. According to Ronsky’s testimony, Foster entered Ronsky’s home, took a bottle

of whiskey that Ronsky had been drinking, and proceeded to tease Ronsky about the

whiskey before riding away on a bicycle.      At that point, Ronsky left his house to

purchase beer from a nearby corner store.   Because the store was not yet open, he went

to his neighbor Susan Davis’s house for coffee and breakfast.        Foster approached

Ronsky in Davis’s driveway, demanded that Ronsky give him what Foster claimed he was
owed, and proceeded to punch Ronsky. According to the testimony of both Ronsky and

Foster, Foster knocked Ronsky to the ground several times with the force of his punches.

Ronsky alleged that after knocking him to the ground, Foster took two cell phones, a

necklace, and a wallet from his pockets and left.

       {¶5} Foster disagrees with Ronsky as to how this fight started. He testified that

he approached Ronsky and asked Ronsky to pay him, and in response, Ronsky refused

and “rushed [him].” Foster does not deny punching Ronsky and knocking him to the

ground.

       {¶6} Ronsky then went inside Davis’s house, and Davis, seeing Ronsky’s

condition, called 911. Ronsky was treated for his injuries at Fairview Hospital, and

Foster was arrested the following day.

       {¶7} On June 16, 2017, Foster pleaded not guilty as to both counts.             On

September 18, 2017, Foster waived his right to a jury trial. A bench trial began the next

day.   Ronsky, Davis, and Foster testified at trial, along with two Cleveland police

officers, a detective, and the physician assistant who treated Ronsky.    On September 20,

2017, the court found Foster guilty of felonious assault and not guilty of aggravated

robbery.   On October 16, 2017, the court sentenced Foster to three years in prison.

Foster now appeals, presenting two assignments of error for our review.

Law and Analysis

Sufficiency
        {¶8} In his first assignment of error, Foster argues that the state failed to produce

legally sufficient evidence to support his felonious assault conviction. Specifically, he

asserts that the state failed to present any evidence that Ronsky suffered serious physical

harm.

        {¶9} A sufficiency challenge requires a court to determine whether the state has

met its burden of production at trial and to consider not the credibility of the evidence but

whether, if credible, the evidence presented would support a conviction.            State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.               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, 273, 574 N.E.2d 492

(1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979).

        {¶10} Foster was convicted of felonious assault pursuant to R.C. 2903.11(A)(1),

which makes it a crime to knowingly cause serious physical harm to another. R.C.

2901.01(A)(5) defines “serious physical harm to persons” as, inter alia, “any physical

harm that involves some permanent incapacity, whether partial or total, or that involves

some temporary, substantial incapacity.”

        {¶11} We find that the state clearly met its burden with respect to establishing that

Foster inflicted serious physical harm on Ronsky. The physician assistant who treated

Ronsky testified that Ronsky had suffered from an orbital fracture, a nasal fracture, an ear
laceration requiring a stitch, and a subconjunctival hemorrhage in his left eye.      These

injuries are sufficient to constitute serious physical harm. This court has held that nasal

fractures are sufficient to constitute serious physical harm. State v. Clark, 8th Dist.

Cuyahoga No. 104076, 2016-Ohio-5143, ¶ 23. Here, the victim suffered multiple facial

fractures, and his injuries resulted in significant bruising and swelling, along with

substantial pain that required prescription medication. Further, Foster does not dispute

any of the evidence regarding the harm suffered by Ronsky; he merely disputes the

seriousness of Ronsky’s injuries. Taking the evidence in the light most favorable to the

state, however, there was sufficient evidence to show that Foster caused Ronsky serious

physical harm.   Therefore, this assignment of error is without merit.

Manifest Weight

       {¶12} Unlike a challenge to the sufficiency of evidence, a manifest weight

challenge attacks the quality of the evidence and questions whether the state met its

burden of persuasion at trial.        State v. Hill, 8th Dist. Cuyahoga No. 99819,

2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 13.     When reviewing a manifest weight challenge, a court reviews

the entire record, weighing all evidence and reasonable inferences and considering the

credibility of the witnesses, to determine whether the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed.

Thompkins at 387.
       {¶13} After a thorough review of the record, we conclude that the trier of fact did

not clearly lose its way, because Foster’s conviction was not against the manifest weight

of the evidence. Again, the only element of his felonious assault conviction that Foster

contests is serious physical harm.       We established above that the state presented

sufficient evidence that Foster caused Ronsky serious physical harm. Given the totality

and nature of the evidence, we must also conclude that the evidence was credible and

persuasive.

       {¶14} In arguing that his conviction was against the manifest weight of the

evidence, Foster argues that Ronsky’s testimony was inconsistent and therefore not

credible enough to support a conviction. We disagree. Although Ronsky’s testimony

contained several inconsistencies, he clearly testified as to the physical assault he suffered

at the hands of Foster. Further, this aspect of Ronsky’s testimony was supported by

Foster’s own testimony and the medical evidence presented in the case.       Therefore, even

if Ronsky’s testimony was inconsistent or even incredible as to how exactly the

altercation started, this is outweighed by the totality of the evidence in the case.

Therefore, this assignment of error is without merit.

       {¶15} Because we find that Foster’s conviction was supported by sufficient

evidence and was not against the manifest weight of the evidence, we affirm his

conviction.
      It is ordered that appellee recover of 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 appeal 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.


__________________________________________
TIM McCORMACK, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR
