[Cite as State v. Holmes, 2015-Ohio-5050.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-15-06

        v.

LAWRENCE W. HOLMES,                                       OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2014CR94

                                      Judgment Affirmed

                           Date of Decision: December 7, 2015




APPEARANCES:

        Tim A. Dugan for Appellant

        Elizabeth H. Smith for Appellee
Case No. 5-15-16


SHAW, J.

      {¶1} Defendant-appellant Lawrence W. Holmes (“Holmes”) appeals the

January 26, 2015 judgment of the Hancock County Common Pleas Court

sentencing Holmes to serve 4 years in prison after Holmes was found guilty in a

jury trial of Felonious Assault in violation of R.C. 2903.11(A)(2), a felony of the

second degree.

      {¶2} The facts relevant to this appeal are as follows. On April 5, 2014, at

approximately 8:30 a.m. Holmes was at his residence with his girlfriend Tammy

Theiss (“Tammy”) when their mutual friend Joe Ehlinger (“Joe”) came over with a

12-pack of beer. Holmes and Joe drank the beer then went to a bar along with

Tammy to have a pitcher of beer and play pool.

      {¶3} After leaving the bar, they picked up a pizza and returned to Holmes’s

residence.   Upon returning to Holmes’s residence, Joe gave Holmes $40 to

purchase some crack-cocaine, so Holmes left in his vehicle. Joe and Tammy went

inside and ate the pizza, and a short time later Holmes returned, agitated, without

the crack-cocaine. When Joe and Tammy both asked Holmes for Joe’s money,

Holmes became further agitated and broke the glass living-room table. Holmes

then gave Joe his money back and ordered Joe and Tammy to leave.

      {¶4} According to Tammy, Holmes then began choking her, and Joe

intervened, at which point Holmes began to strike Joe. Joe got away from Holmes


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when Tammy drew Holmes’s attention and Joe ran out the front door into the

yard. Subsequently Holmes told Tammy to leave, and pushed her toward the door.

Tammy fell near the front door and fractured two bones in her leg. Holmes

initially asked Joe to help get Tammy out of his house, but when Joe indicated that

they were going to have to get an ambulance Holmes grew further enraged at Joe.

       {¶5} Joe and Tammy both indicated that Holmes then picked up a wooden

two-by-four and started chasing Joe. Joe stated that when he started to create a

little distance between himself and Holmes, Holmes threw the two-by-four at him

and it struck Joe in the back of the head.

       {¶6} While Holmes chased Joe, Tammy called 9-1-1 and police officers

responded to the scene. Tammy was taken to the hospital and treated for her

injuries. Joe refused treatment.

       {¶7} On April 15, 2014, Holmes was indicted for two counts of Felonious

Assault. (Doc. No. 1). The first count was related to Joe and alleged that Holmes

knowingly caused or attempted to cause physical harm to Joe by means of a

deadly weapon—specifically, a two-by-four—on April 5, 2014, in violation of

R.C. 2903.11(A)(2), a felony of the second degree. (Id.) The second count related

to Tammy and alleged that Holmes knowingly caused her serious physical harm in

violation of R.C. 2903.11(A)(1), a felony of the second degree. (Id.) On April 23,

2014, Holmes was arraigned and he pled not guilty to the charges. (Doc. No. 9).


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       {¶8} On December 8-10, 2014, the case proceeded to a jury trial. After

jury selection the trial began by the jury viewing the premises in question. At trial

the State called five witnesses, which included Tammy, Joe, and three of the

officers who responded to the scene of the incident on April 5, 2015. Multiple

pictures were also introduced into evidence depicting the interior of Holmes’s

residence, pictures of Joe’s injuries, and pictures of Tammy’s injuries. The two-

by-four was also entered into evidence. In addition, the parties stipulated, inter

alia, that Tammy’s injuries constituted serious physical harm.

       {¶9} After the State rested its case, Holmes took the stand in his own

defense, testifying that Tammy fell while he was out chasing Joe, and that he was

not even around when she fell. Holmes also testified that when he threw the two-

by-four at Joe he only intended to scare him, not hit him. At the conclusion of

Holmes’s testimony, the defense rested its case.

       {¶10} The parties proceeded to closing arguments and the trial court then

instructed the jury on the applicable law. Ultimately the jury found Holmes guilty

of the Felonious Assault related to Joe, but not guilty of the Felonious Assault

related to Tammy. The trial court ordered a pre-sentence investigation and the

matter was set for sentencing.

       {¶11} On January 22, 2015, the case proceeded to sentencing.           At the

sentencing hearing the State requested that Holmes be sentenced to serve 7 years


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in prison based in part on Holmes’s criminal and drug history. The defense

requested that Holmes be sentenced to a minimum 2-year sentence. Holmes then

made a statement continuing to maintain that he did nothing wrong. After hearing

the arguments of the parties, the trial court ordered Holmes to serve a 4-year

prison term.   A judgment entry memorializing Holmes’s sentence was filed

January 26, 2015.

       {¶12} It is from this judgment that Holmes appeals, asserting the following

assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE STATE FAILED TO PROVIDE LEGALLY SUFFICIENT
       EVIDENCE TO SUSTAIN A CONVICTION FOR
       FELONIOUS ASSAULT WITH A DEADLY WEAPON.

                   ASSIGNMENT OF ERROR 2
       APPELLANT’S CONVICTION FOR FELONIOUS ASSAULT
       FELL AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

                             First Assignment of Error

       {¶13} In Holmes’s first assignment of error he argues that there was

insufficient evidence to convict him. Specifically Holmes contends that the State

did not present sufficient evidence that the two-by-four constituted a deadly

weapon, and that the State did not establish that Joe was harmed by Holmes as a

result of being struck by the two-by-four.




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        {¶14} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency

is a test of adequacy. Id. When an appellate court reviews a record upon a

sufficiency challenge, “ ‘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. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, ¶

77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus.

        {¶15} In this case Holmes was convicted of Felonious Assault in violation

of R.C. 2903.11(A)(2), which reads, “No person shall knowingly * * * [c]ause or

attempt to cause physical harm to another * * * by means of a deadly weapon[.]”

        {¶16} “Deadly weapon” is defined in R.C. 2923.11(A)1 as, “any

instrument, device, or thing capable of inflicting death, and designed or specially

adapted for use as a weapon, or possessed, carried, or used as a weapon.”

        {¶17} At trial the State called five witnesses in order to convict Holmes of

Felonious Assault beginning with Tammy Theiss. Tammy testified that in April

of 2014 she was dating Holmes and she was living with him at his residence in

Findlay.    Tammy testified that on April 5, 2014, she was awakened by Joe


1
  Revised Code 2903.11(E)(1) states that “deadly weapon” has the same meaning as it does in R.C.
2923.11.

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knocking on the door of the residence at approximately 8:30-9 a.m. Tammy

testified that she had met Joe through Holmes a couple years prior, and that Joe

and Holmes were friends. Tammy testified that she and Holmes had just gone to

bed a few hours prior to Joe’s arrival so she asked Joe to leave, but Holmes told

Joe he could stay.

       {¶18} Tammy testified that Joe brought a 12-pack of beer with him, and

that Holmes and Joe drank the entire 12-pack within 30 minutes. Tammy testified

that Joe and Holmes then wanted to go to “Nikki’s Bar” so she drove them to the

bar.

       {¶19} Tammy testified that Holmes and Joe drank a pitcher of beer at the

bar, then Joe suggested they get a pizza, so they all left the bar, picked up a pizza,

and returned to Holmes’s residence. Back at Holmes’s residence, Tammy testified

that Joe gave Holmes money to get some crack-cocaine. Tammy testified that

Holmes then left in his own vehicle, and was gone about 15-20 minutes.

       {¶20} Tammy testified that when Holmes returned he did not have the

crack. Tammy testified that Joe then asked for his money back, and Holmes was

not acknowledging him. Tammy testified that she then told Holmes to give Joe

his money back and then “all hell broke loose.” (Tr. at 189). Tammy testified that

Holmes struck the glass table in the living room and it shattered. Tammy testified

that Holmes then came at her and had his hands around her throat. According to


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Tammy, as she tried to get loose Joe approached Holmes and Holmes let her go

and turned toward Joe. Tammy testified that Holmes then began punching Joe in

the face.

       {¶21} Tammy testified that she then called out to Holmes and drew his

attention, allowing Joe to get away. Tammy testified that Joe ran out the door

while Holmes’s attention was focused on her and then Holmes told her to get out.

Tammy testified that while she was reaching to get her phone and leave, Holmes

pushed on her, and that she eventually fell, breaking her leg. Tammy testified that

she did not believe it was Holmes’s intention to break her leg, that she felt he just

wanted her to leave.

       {¶22} Tammy testified that after she fell Holmes called out to Joe to try and

get him to come back and get Tammy. Tammy testified that Joe came back and

indicated they were going to have to call an ambulance for Tammy. According to

Tammy, Holmes then said, “you just fucked up” to Joe, then Holmes picked up a

nearby two-by-four and started chasing after Joe. Tammy testified that they ran

out of sight, and she called 9-1-1.

       {¶23} The 9-1-1 call was played for the jury. Tammy stated in the call that

her boyfriend broke her leg and that he was chasing her friend down the street

with a two-by-four. (State’s Ex. 8). In the call Tammy stated that she did not

know if her boyfriend “killed him or what.” (Id.)


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       {¶24} Tammy testified that the police eventually arrived and she was

ultimately taken to the hospital and treated for her injuries, which included her

fractured leg.

       {¶25} On cross-examination, the defense emphasized through Tammy’s

testimony that on the night before the alleged incident, and in the early morning

hours on the date of the alleged incident, Joe and Tammy were smoking crack-

cocaine at Joe’s residence. Tammy testified that because they had been smoking

crack-cocaine the night before she did not want Joe to come in when he arrived at

Holmes’s residence at 8:30 in the morning. She testified that she did not think

they needed “to get started again.” (Tr. at 227).

       {¶26} Tammy also testified that Holmes had a bad temper, that she knew he

was getting angry on the date of the incident, but she whole-heartedly believed

that Holmes had no intent to break her leg.

       {¶27} The State next called Joe Ehlinger.       Joe corroborated Tammy’s

testimony that he arrived at Holmes’s residence at approximately 8:30 a.m. on

April 5, 2014, with a 12-pack of beer. Joe further corroborated that he and

Holmes drank the 12-pack, went to Nikki’s bar, got a pizza, then returned to

Holmes’s residence. Joe also testified that he gave Holmes $40 to go purchase

crack-cocaine for him, and that Holmes drove off in his car to go get it.




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       {¶28} Joe testified that Holmes returned without the crack-cocaine and was

reluctant to give Joe his money back. Joe testified that Holmes was agitated upon

returning, and that he ultimately smashed the glass table in the living room, then

went after Tammy. Joe testified that Holmes put his hands around Tammy’s

throat. At that time, Joe testified that he screamed for Holmes to stop. Joe

testified that as soon as he touched Holmes to try and get him to stop, Holmes

turned toward him and started repeatedly hitting him. Joe testified that he put his

hands up to deflect the blows, but a few got through. Joe testified that he then

attempted to get out of the house.

       {¶29} Joe testified that Tammy drew Holmes’s attention, and at that point

he ran out of the house into the yard. Joe testified when he looked back he heard

Tammy screaming in pain and Holmes was saying “get this bitch off the porch.”

(Tr. at 252). Joe testified that when he walked up to the porch and saw Tammy’s

leg he said that she needed an ambulance. Joe testified that Holmes then said,

“You just fucked up,” and grabbed a two-by-four that was nearby. (Tr. at 253).

Joe testified that he ran, and Holmes ran full speed after him, chasing him with the

two-by-four. Joe testified that he believed if Holmes would have gotten to him he

would have killed him. (Tr. at 253).

       {¶30} Joe testified when he started to “put a little distance” between

himself and Holmes, indicating Holmes was not going to catch him, Holmes threw


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the two-by-four at him and it hit him in the head. Holmes testified that he kept

running and told the neighbors to call 9-1-1.

       {¶31} Joe testified that the police arrived, that he spoke with them, and that

they took pictures of his abrasions. Joe also identified the two-by-four he was

struck with and the two-by-four was entered into evidence. Joe testified that as a

result of being hit by the board he had a “knot” or “goose egg” on the back of his

head that took 2-3 days to heal. Joe testified that he refused medical attention.

       {¶32} Next the State called three officers who responded to the scene. The

first was Sergeant Michael Swope of the Findlay Police Department. Sergeant

Swope testified that he went to Holmes’s residence to assist the police officers

who had been dispatched there. Sergeant Swope testified that upon arrival he

observed one officer helping with Tammy and one officer speaking with Joe.

Sergeant Swope testified that Holmes was not there when he arrived but Holmes

returned a little while later, highly agitated and excited. Sergeant Swope testified

that Holmes calmed down enough and wanted to tell his side of the story to

Sergeant Swope, but as Holmes talked he kept becoming agitated and going on

tangents so he never got his story out.

       {¶33} Sergeant Swope testified that Holmes was ultimately arrested and

placed in a patrol car. Sergeant Swope testified that Holmes was very agitated in




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the patrol car and that he banged his head multiple times on the screen separating

the back seat from the front.

       {¶34} Sergeant Swope testified that he located the two-by-four in question

in the yard. Sergeant Swope testified that based on his training and experience the

two-by-four was capable of inflicting death.

       {¶35} On cross-examination Sergeant Swope testified that he looked at the

area Joe had indicated he had been struck by the two-by-four and he did not see an

injury because it was in Joe’s hairline. (Tr. at 302).

       {¶36} The State next called Officer Jordan Cramer, who also responded to

the scene. Officer Cramer corroborated Sergeant Swope’s testimony, and also

testified that he took Joe’s written statement, photographed the scene and located

the two-by-four. Officer Cramer testified that he did observe a small bruise on

Joe’s neck from where Joe indicated he had been struck by the two-by-four. This

small bruise was exhibited in a photograph, State’s Ex. 22. Officer Cramer also

testified that he had training in weapons, and based on his training he believed that

the two-by-four was capable of inflicting death through blunt force trauma.

       {¶37} Lastly, the State called Officer Kevin Cieplowski.               Officer

Cieplowski corroborated the testimony of the two prior officers, adding that he

helped prepare Tammy to be transported to the hospital.




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       {¶38} At the conclusion of the State’s case, and at the close of evidence,

Holmes made a Crim.R. 29 motion for acquittal. The motion was overruled by the

trial court. On appeal, Holmes now renews his argument that the State presented

insufficient evidence to convict him. Specifically, Holmes argues that there was

not sufficient evidence presented that the two-by-four could qualify as a deadly

weapon. Holmes contends that it was not established that the two-by-four could

cause death, or that it could cause death being thrown rather than used as a

bludgeon. In addition, Holmes argues that there was no testimony as to Joe having

any injuries caused by the two-by-four.

       {¶39} First, there was testimony directly from Joe that he was injured as a

result of Holmes throwing the two-by-four at him. Joe testified that he had a

“knot” or a bruise on his head that lasted a few days as a result of being struck. In

addition, Officer Cramer testified that he observed an abrasion on the back of

Joe’s neck where Joe indicated he had been struck by the board. That abrasion

was photographed and that photograph was introduced into evidence. Thus there

was testimony that Joe was injured as a result of being struck by the two-by-four.

       {¶40} Nevertheless, even if there was not the preceding testimony, Joe

clearly testified that Holmes chased him with the two-by-four and that Joe thought

Holmes would kill him if he caught him. Joe clearly testified that Holmes threw

the two-by-four at him, and the two-by-four was located in the yard, as Joe’s


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testimony suggested. The statute at issue does not require physical harm, rather it

requires that Holmes cause or attempt to cause physical harm by means of a

deadly weapon. R.C. 2903.11(A)(2). Joe’s testimony would certainly allow a jury

to find an attempt to cause physical harm, even if actual physical harm was not

proven.

       {¶41} Dealing next with Joe’s claim that there was not adequate testimony

to establish the two-by-four was a deadly weapon, both Sergeant Swope and

Officer Cramer testified that the two-by-four was capable of inflicting death. The

following specific exchange occurred during Sergeant Swope’s direct testimony.

       Q: Based on your training and your experience as an officer
       and a Sergeant, is it your opinion that a wooden 2 by 4 could be
       capable of inflicting death?

       A [Sergeant Swope]: Absolutely.

       Q: Based on your training and you[r] experience as an officer
       and a Sergeant, is it your opinion that [this] specific 2 by 4 that
       was inside the bag marked as Exhibit 7 could be capable of
       inflicting death?

       A:       Yes.

(Tr. at 299).

       {¶42} Officer Cramer then also testified on direct that the two-by-four was

capable of inflicting death. In an exchange with the prosecutor, Officer Cramer

testified as follows.



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      Q: Throughout your training and your experience to become a
      police officer, did you have any training in regards to weapons?

      A [Officer Cramer]: Yes.

      Q: And did you have any training in regards to everyday
      objects being used as weapons?

      A:    Yes.

      ***

      Q: In your training and experience, was there ever an instance
      where any examples of a 2 by 4 being used as a weapon?

      A:    Yes.

      Q: That was throughout your experience or your training as
      an officer?

      A:    Throughout my training, yes.

      Q: During your training was it shown to you that a 2 by 4 or a
      wooden board could be capable of inflicting death?

      A:    Yes.

      Q: What did you learn through your training? How was that
      shown to be able to be capable of inflicting death?

      A: Probably striking with such force towards the head area to
      cause blunt force trauma to [the] back of the head could cause
      serious injury or death from the board.

      Q: Based on your training and your experience as an officer, is
      your experience that specifically the 2 by 4 that’s contained
      within Exhibit 7 could be capable of inflicting death?

      A:    Yes.


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(Tr. at 319-320).

        {¶43} Not only did two officers testify that the two-by-four used in this

case was capable of inflicting death, but the two-by-four was also entered into

evidence. Thus the jury could see the board for itself. Based on the testimony of

the two officers in this case, there was certainly sufficient evidence to allow a jury

to determine whether the two-by-four could constitute a deadly weapon based on

the instructions it was given.2 Therefore Holmes’s arguments on this issue are not

well-taken, and his first assignment of error is overruled.

                                   Second Assignment of Error

        {¶44} In Holmes’s second assignment of error he argues that even if there

was sufficient evidence to convict him his conviction was against the manifest

weight of the evidence.

        {¶45} The Ohio Supreme Court has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.

Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus.

2
  We would note that finding that a two-by-four, or a similar piece of wood, can constitute a deadly weapon
is consistent with caselaw from this Court and other Ohio Appellate Courts. See State v. McAlphine 8th
Dist. Cuyahoga No. 79216, 2002 WL 120529 (two-by-four capable of inflicting death or serious injury); In
re Fortney, 4th Dist. Washington No. 05CA5, 2005-Ohio-3618 (a large stick four feet in length and six
inches in circumference can be deadly weapon); State v. Murray, 11th Dist. Lake No. 2003-L-045, 2005-
Ohio-1693 (a table leg—called a stick in the case—can be a deadly weapon when used as a club); State v.
Pope, 3d Dist. Logan No. 8-89-19, 1990 WL 157268 (Oct. 4, 1990) (toilet plunger handle can be deadly
weapon).

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       {¶46} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Thompkins,

supra, at 387. In reviewing whether the trial court's judgment was against the

weight of the evidence, the appellate court sits as a “thirteenth juror” and examines

the conflicting testimony. Id. In doing so, this Court must review the entire

record, weigh the evidence and all of the reasonable inferences, consider the

credibility of witnesses, and determine whether in resolving conflicts in the

evidence, the factfinder “ ‘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. Andrews, 3d Dist. Allen No. 1–05–70, 2006–Ohio–3764, ¶ 30,

quoting Thompkins at 387.

       {¶47} In this case, after the State rested, Holmes proceeded to his case-in-

chief and he testified on his own behalf. Holmes testified that the events on the

morning of April 5, 2014, up to him breaking the table were essentially the same

as Joe and Tammy had testified. However, Holmes testified that the table broke

when he slammed coasters onto it. He also testified that he then went to remove

Tammy from his residence, but he never touched her. Holmes testified that Joe

then attacked him, so Holmes took a single swing at Joe and Joe took off running.




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       {¶48} Holmes testified that he did pick up the two-by-four and he followed

Joe. Holmes testified that Tammy was injured while he followed Joe. Holmes

also testified that he threw the two-by-four only to scare Joe, and that the two-by-

four did not actually hit Joe. Holmes testified that when he went back to his

residence he saw Tammy and that she had broken her leg.

       {¶49} On cross-examination Holmes testified contrary to Tammy’s

testimony that Tammy was not his girlfriend. He also testified that when Joe gave

him the money for crack he was never actually going to buy crack because he did

not have anywhere to buy it from. In addition, Holmes testified that he was

agitated on the date of the incident because of the way Tammy was treating him.

       {¶50} On appeal, Holmes claims that the State did not establish that

Holmes knowingly attempted to cause physical harm with the two-by-four.

Holmes argues that no one could verify any injury to Joe’s head, and that Holmes

testified the board actually missed Joe’s head. Further, Holmes argues that he

never intended to hurt Joe; rather he only intended to scare Joe.

       {¶51} Despite Holmes’s arguments, the jury was presented with testimony

from Joe and from an officer that there was an abrasion on Joe’s neck. Joe

specifically testified that he had a lump for 2-3 days from the two-by-four striking

him in the head. The jury elected not to believe Holmes’s version of events,




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which is wholly within the jury’s purview as factfinder. The jury was also in a far

better position to judge the witnesses’ credibility.

       {¶52} Moreover, in this case the jury was presented with uncontroverted

evidence that Holmes chased Joe with a two-by-four. The jury believed Joe’s

testimony that Holmes threw the two-by-four and it struck him, or believed that

Holmes at least attempted to cause Joe physical harm with the two-by-four. Based

on the testimony and exhibits introduced into the record at trial we cannot find that

the jury clearly lost its way or created a manifest miscarriage of justice.

Accordingly, Holmes’s second assignment of error is overruled.

       {¶53} Having found no error in the particulars assigned, Holmes’s

assignments of error are overruled and the judgment of the Hancock County

Common Pleas Court is affirmed.

                                                                Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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