[Cite as State v. Deanda, 2014-Ohio-3668.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 13-10-23

        v.

DAVID L. DEANDA,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Seneca County Common Pleas Court
                           Trial Court No. 09-CR-0210

                                     Judgment Affirmed

                            Date of Decision: August 25, 2014




APPEARANCES:

        John H. Kahler, II for Appellant

        Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-10-23


WILLAMOWSKI, P.J.

        {¶1} Defendant-appellant David L. Deanda (“Deanda”) brings this appeal

from the judgment of the Court of Common Pleas of Seneca County finding him

guilty of felonious assault and sentencing him to seven years in prison. For the

reasons set forth below, the judgment is affirmed.

        {¶2} On September 19, 2009, Deanda was involved in a fight with David

B. Swartz (“Swartz”). During the fight, Deanda grabbed a knife and proceeded to

stab Swartz multiple times in the neck and chest. When the police and emergency

medical technicians arrived, Deanda was arrested and Swartz was taken to the

community hospital. Swartz was eventually transported by life flight to a trauma

hospital due to his injuries.

        {¶3} On September 23, 2009, the Seneca County Grand Jury indicted

Deanda on one count of attempted murder, a felony of the first degree, in violation

of R.C. 2923.02 and 2903.02(A). Doc. 1. A jury trial was held from May 17, to

May 21, 2010. Doc. 71. The first relevant witness1 for the State was Jacob

DeMonte (“DeMonte”), a police officer for the Tiffin Police Department. Tr. 140.

DeMonte testified that he was the first officer to arrive at the scene. Tr. 142.

When he arrived he observed a man, later identified as Swartz, and Jolene Haubert

(“Haubert”) standing at the end of a driveway. Tr. 142-43. DeMonte observed

several lacerations on Swartz’s back and that Swartz was bleeding from the
1
 There was no dispute as to who had stabbed Swartz and no questions regarding the DNA evidence. Thus,
some of the testimony is not relevant to this appeal and will not be discussed.

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Case No. 13-10-23


wounds. Tr. 143. From speaking with them, DeMonte identified the perpetrator

as Deanda and identified him in the courtroom as the defendant. Tr. 143-44.

When DeMonte first spoke to Deanda, he noted that he appeared to be oddly calm.

Tr. 144. DeMonte did not originally note any injuries to Deanda. Tr. 145. When

Deanda heard Swartz and Haubert identify him as the perpetrator, he responded

with “F*** yeah, I stabbed ‘em.” Tr. 145. DeMonte then placed Deanda in

handcuffs. Tr. 145. DeMonte testified that once he had completely restrained

Deanda in the handcuffs, Deanda turned toward Swartz and started yelling “I’ll

kill you honky!” and “I’m gonna get you. I’m gonna get you Swartz.” Tr. 146.

DeMonte testified that he had to physically restrain Deanda from going after

Swartz again. Tr. 146.

       {¶4} DeMonte testified that once Deanda was in the police car, he claimed

that he had acted in self-defense after Swartz started hitting him with a stick. Tr.

148. Upon examination of Deanda’s head, DeMonte observed a knot on Deanda’s

head. Tr. 148. According to DeMonte, Deanda kept switching from yelling

threats at Swartz to claiming that he had acted in self-defense, but the police

weren’t going to listen because he was not white. Tr. 148-150. As DeMonte shut

the door to the cruiser, Deanda started cursing at the officers and yelling more

threats at Swartz. Tr. 150. At the time Deanda was taken to the Sheriff’s Office,

he was only charged with persistent disorderly conduct and resisting arrest for his

actions at the scene. Tr. 150.

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       {¶5} After Deanda and Swartz were removed from the scene, DeMonte

continued to investigate.    Tr. 151.   DeMonte testified that he saw Swartz’s

abandoned shirt at the end of the driveway and that it was covered in blood. Tr.

151. DeMonte followed Haubert back to the garage where the altercation was

believed to have started. Tr. 152. In the garage area, there was a “big mess” from

the fight and everything was knocked over. Tr. 152. When DeMonte left the

garage, he saw a knife with a silver blade, a gold handle, and blood on it lying

beside the driveway. Tr. 152. DeMonte then began to tape off the crime scene

and noticed a dowel rod lying by the sidewalk. Tr. 153.

       {¶6} On cross-examination, DeMonte testified that there were children at

the scene when the fight started. Tr. 156. DeMonte admitted that he did not

question the children about who started the fight. Tr. 156. Deanda had indicated

to DeMonte that Swartz had struck him multiple times with a stick, including

hitting him in the head. Tr. 157-58. There was some indication that Deanda had

suffered injury from being struck. Tr. 158. DeMonte testified that if someone

were to strike another with the dowel rod he found, it would be painful and would

cause injury. Tr. 159.

       {¶7} The second witness presented by the State was Sergeant Mark

Marquis (“Marquis”) from the Tiffin Police Department.          Tr. 161.   Marquis

testified that he responded to the report of the stabbing just prior to 9:00 p.m. on

September 19, 2009. Tr. 163. When he arrived, he observed a man and woman

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standing in the driveway holding some cloth against the man’s back covering

wounds. Tr. 163-64. Marquis also observed DeMonte holding a male up against

the front of the house. Tr. 163. Marquis went to the couple and observed what

appeared to be puncture wounds in the back of the man, later identified as Swartz.

Tr. 164. When Marquis arrived, Deanda was in a highly irate state and did not

appear to be injured. Tr. 165. Due to Deanda’s emotional state, Marquis and

DeMonte placed him in a patrol car to separate Deanda from Swartz. Tr. 166.

The entire time the officers were trying to place Deanda in the car, he was trying

to physically move towards Swartz and yelling comments at Swartz. Tr. 166.

While another officer was driving Deanda away, he continued to yell at Swartz

and yelled “I’ll f*****g kill you.” Tr. 168.

       {¶8} Once Deanda was removed from the scene, Marquis began to secure

the scene, identify witnesses, and procure statements from the witnesses. Tr. 168.

Marquis observed the dowel rod lying in the driveway and also observed a knife

with a four inch blade lying in the driveway as well. Tr. 169. Based upon the

complexity of the matter and the amount of evidence to be gathered, Marquis

called for the detectives to come investigate. Tr. 170. On cross-examination,

Marquis testified that he did not take any witness statements at the scene. Tr. 171.

Marquis testified that Deanda had claimed to have acted in self-defense. Tr. 172.

       {¶9} The next witness for the state was Officer LaVerne Keefe (“Keefe”),

who worked as a patrolman with the Tiffin Police Department. Tr. 173. Keefe

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testified that when he arrived at the scene, he observed Haubert and Swartz at the

end of the drive with Haubert pressing a shirt against Swartz’s back to stop

bleeding. Tr. 175. DeMonte had Deanda held against the side of the house. Tr.

175. Deanda was “highly agitated” and was yelling at Swartz.            Tr. 177-78.

Keefe’s involvement was to guard the scene until the detectives arrived. Tr. 179.

Keefe then assisted the detectives with the processing of the scene. Tr. 180.

       {¶10} Toni Haubert (“Toni”), the sister of Haubert, was the next witness to

testify for the State. Toni testified that she lives with Haubert at the home where

the incident occurred. Tr. 181. Toni testified that they were having a garage sale

and she heard arguing in the garage. Tr. 184. Eventually, she observed Deanda

with the knife and she saw him jab it towards Swartz a couple of times. Tr. 185.

Toni then left the garage and went to call the police. Tr. 185. The next thing Toni

observed was Swartz receiving medical treatment from the paramedics, but she

was watching from the neighbor’s porch. Tr. 187.

       {¶11} On cross-examination, Toni testified that Swartz had been living

with them, but was supposed to have moved out the night before. Tr. 189. The

day of the fight, Swartz had packed up his stuff to move and Toni had told him to

leave because nobody wanted him there. Tr. 191. Toni testified that at the time of

the altercation, her 10 year old daughter and Deanda’s eleven year old nephew

were present. Tr. 193. The day after this incident, Swartz was back at the house

and had spent less than 12 hours in the hospital. Tr. 198. Upon Swartz’s return

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Case No. 13-10-23


from the hospital, he was not acting differently. Tr. 199.    His injuries did not

appear to affect how he was living his life. Tr. 201. Swartz sat around watching

television just like he usually did. Tr. 201.

       {¶12} The fifth witness for the State was Haubert, the girlfriend of Swartz.

Tr. 204-205. Haubert testified that the children were playing in the backyard. Tr.

210. Haubert testified that Deanda came into the garage, nudged Swartz, and said

he “was gonna ‘f**k him up’ and Swartz had replied back, ‘No, you’re not. You

need to leave.’” Tr. 210. Haubert then testified that Deanda had a club in his left

hand and he brought it around. Tr. 210-11. She then testified that she left to take

the children inside and she did not see the fight. Tr. 211. When she came back

out of the house, she heard Deanda say “I’m stabbing you. I’m gonna kill you.”

Tr. 212. At that time, she called the police. Tr. 212. As far as she knew, Deanda

struck the first blow in the altercation. Tr. 213. While Swartz was walking away

from Deanda, she heard Deanda repeatedly saying “I’m gonna kill you.” Tr. 213.

Later, Haubert was able to observe the knife and identified it as belonging to

Deanda. Tr. 214.

       {¶13} As to the injuries, Haubert testified that she observed a gash in

Swartz’s neck and multiple stab wounds to Swartz’s back. Tr. 215. She then

began to put pressure on the injuries to try and stem the blood flow. Tr. 215. She

used Swartz’s shirt to apply the pressure to the wound. Tr. 215. Haubert testified

that Swartz had suffered seven stab wounds. Haubert testified that the ambulance

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Case No. 13-10-23


took Swartz from the scene and that she received a call that he was being flown to

Toledo for emergency care. Tr. 218. According to Haubert, Swartz was released

the next day and was in a very weak condition, barely able to move. Tr. 218. At

the time of the hearing, Swartz still has scars from his injuries. Tr. 219.

       {¶14} On cross-examination, Haubert testified that she had previously

dated Deanda and started dating Swartz after her relationship with Deanda ended.

Tr. 220. Haubert admitted that the day of the fight she was trying to end the

relationship with Swartz. Tr. 223. The night before the incident, Swartz was

supposed to move out of the house, but was unable to do so because he was

incarcerated and his vehicle was impounded. Tr. 224. Haubert also admitted that

Swartz did not like Deanda because Deanda was one of her “exes” and Swartz

“didn’t like my exes.” Tr. 225. According to Haubert, Swartz was a jealous

boyfriend. Tr. 225. The breakup before the incident ended because when Swartz

was stabbed, Haubert felt bad for him and wanted to take care of him. Tr. 226.

Haubert testified that she felt like the incident was her fault because Swartz “told

me it was my fault because [Deanda] [was] my ex.” Tr. 226. Haubert admitted

that Swartz has made rude comments about Deanda. Tr. 227. Haubert also

restated that she did not see the actual fight and did not see any part of the physical

altercation. Tr. 228. Haubert testified that Swartz would get angry every time

Deanda’s name was mentioned. Tr. 230.



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      {¶15} Swartz was the sixth witness for the State. Swartz testified that

earlier in the day in question Deanda had threatened him with a stick while he was

standing on the sidewalk. Tr. 237. Later that night, Swartz was in the garage

talking to Haubert when Deanda entered the garage. Tr. 238-39. According to

Swartz, Deanda came up to him saying something and Swartz told Deanda to

leave. Tr. 239. Deanda then initiated the contact by hitting Swartz with a club he

had been holding behind his back. Tr. 239. Swartz testified that Deanda said

something to him, but he did not recall what was said. Tr. 239. Swartz testified

that Deanda had struck him multiple times all over his body. Tr. 240. Swartz

testified that he was able to get the stick away from Deanda and then Deanda

began stabbing him. Tr. 241. At that time, Swartz did not know what Deanda was

doing until Deanda told him he was cutting him. Tr. 241. Swartz then pulled

Deanda’s hoodie over Deanda’s head and began striking Deanda’s head with the

stick. Tr. 242. According to Swartz, this did not happen until after Deanda had

stabbed him. Tr. 242. Swartz testified that he was stabbed seven times and he

was in pain. Tr. 243. He did not notice any blood on himself until Deanda told

Swartz that he was being stabbed. Tr. 243. Swartz believed that Deanda was

trying to kill him because Deanda “kept stabbing me.” Tr. 244. Swartz testified

that Deanda delivered the first blow. Tr. 245. Deanda stopped approaching him

with the knife when the police arrived. Tr. 247.



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Case No. 13-10-23


       {¶16} After leaving the garage, Swartz walked out to the sidewalk and

Haubert started putting pressure on his wounds to stop the blood. Tr. 247. Swartz

testified that he was feeling shaky and the paramedics provided medical treatment

for him. Tr. 247-48. The paramedics then transported him to Tiffin Hospital. Tr.

248. From there, Swartz was flown to St. Vincent’s Hospital in Toledo by life

flight because they thought he might be bleeding internally. Tr. 248. At St.

Vincent’s he was given intravenous treatments, the wounds were cleaned and

closed, and he was watched to make sure there was no internal bleeding. Tr. 249.

Swartz then identified State’s Exhibits 65 and 66 as photographs of the t-shirt he

was wearing when he was stabbed by Deanda. Tr. 250-51. State’s Exhibits 67

through 74 were identified by Swartz as photographs of the injuries received due

to the fight. Tr. 251-53.

       {¶17} On cross-examination, Swartz denied that he had threatened the

children with a baseball bat. Tr. 253-54. Swartz also denied that he was the initial

aggressor in the fight. Tr. 254. Swartz admitted that he did hit Deanda in the head

with the dowel rod. Tr. 255. Swartz also admitted that he was not happy that

Deanda had previously dated Haubert.       Tr. 255.    Swartz denied that he and

Haubert had broken up, but admitted that he had packed his things, placed them in

his vehicle and was intending to leave because they were going to end the

relationship. Tr. 259. However, Swartz stated that they never really broke up



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because when he left, he was arrested for driving while intoxicated, his car was

impounded, and he spent the night in jail. Tr. 259.

       {¶18} Mark Wagner (“Wagner”) testified that he was employed by Tiffin

as an emergency medical technician (“EMT”). Tr. 351. On September 19, 2009,

Wagner was sent to the scene of the incident at approximately 8:50 p.m. Tr. 353.

When he arrived at the scene, he was told the victim was in the driveway and he

observed Swartz standing there with towels on his neck and back. Tr. 354.

Wagner testified that Swartz had injuries to his neck, his shoulder, and five

injuries to his back. Tr. 355. Wagner was concerned that a lung had been

punctured, so he was transported to the hospital. Tr. 355. When Deanda was

removed from the scene, he was very agitated.          Tr. 357.    As Deanda was

transported from the scene, he was yelling “I’m going to kill you” at the victim

from the back of the police cruiser. Tr. 357.

       {¶19} The next witness for the State was William Lalone (“Lalone”), who

was employed by the City of Tiffin as an EMT. Tr. 361. Lalone, like Wagner,

was dispatched to the scene the night of the incident to treat Swartz’s injuries. Tr.

364. Lalone testified that Swartz had a stab wound to the left shoulder and two on

his back which required attention. Tr. 364. There were additional wounds, but

they did not require immediate attention as they were not bleeding. Tr. 364.

Lalone testified that the injuries could have potentially been life threatening. Tr.



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365.   At the scene, no one alerted Lalone that Deanda needed any medical

attention, so he was not treated. Tr. 368.

       {¶20} The twelfth witness for the State was Detective Shawn Vallery

(“Vallery”) from the Tiffin Police Department. Tr. 373. Vallery assisted with the

investigation of the incident. Tr. 374. After speaking with the officer at the scene,

Vallery attempted to make contact with Swartz at Tiffin Mercy Hospital, but

learned that Swartz had been transported to St. Vincent’s Mercy Medical Center in

Toledo. Tr. 375-76. Vallery spoke with the emergency room doctor, who told

him that Swartz had suffered seven stab wounds: one to his face, one to his neck,

three in the back, one to the side, and one in the shoulder. Tr. 376. Vallery then

called St. Vincent’s and spoke with a forensic nurse. Tr. 377. The nurse told him

that wounds were not serious and that no vital organs had been hit. Tr. 377.

       {¶21} After collecting the evidence, Vallery went to the jail to interview

Deanda.    Tr. 397.    Vallery testified that he and Lieutenant Michelle Craig

(“Craig”) asked Deanda to show them his injuries. Tr. 398. They photographed

the injuries. Tr. 398. Vallery testified that he observed a small abrasion on

Deanda’s forehead and a couple of small scratches on Deanda’s neck. Tr. 398.

On cross-examination Vallery testified that he interviewed Deanda at around

midnight the night of the incident. Tr. 414. Vallery admitted that although he

observed some injuries on Deanda, he was not the officer completing the exam

and he did not observe the top of Deanda’s head. Tr. 415. Deanda had told him

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that he had “some bumps on his head.” Tr. 416. To Vallery’s knowledge, there

was no medical examination done on Deanda to determine the severity of his

injuries. Tr. 418.

       {¶22} The next witness for the State was Megan Wise (“Wise”), a

registered nurse at Mercy Hospital of Tiffin. Tr. 420. Wise testified that she

assisted in the treatment of Swartz when he arrived at the emergency room on

September 19, 2009. Tr. 422. Wise testified that as follows.

       Swartz was alert, oriented. He was able to give us an account of
       what had happened. He had multiple stab wounds to his back,
       his shoulder and his neck.

Tr. 422-23. Due to the location of the injuries and the potential for serious injury,

Swartz needed to be seen by a more thorough trauma center.              Tr. 423-24.

According to Wise, Swartz was transported to St. Vincent’s in Toledo because that

facility is a level one trauma center. Tr. 433.

       {¶23} Dr. William Sternfeld (“Sternfeld”) was the fourteenth witness for

the State. Tr. 438. Sternfeld testified that he is a general surgeon who provides

trauma services for St. Vincent’s. Tr. 439. On September 19, 2009, Sternfeld was

the treating physician for Swartz.      Tr. 443.   Sternfeld testified that he was

informed that Swartz had “suffered multiple stab wounds to his chest, face and

neck and this occurred less than two hours earlier.” Tr. 446. Upon examination,

Sternfeld determined that there was no immediate danger to Swartz’s airway,

breathing ability, or circulation. Tr. 447. Sternfeld was concerned that the knife

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had penetrated the muscle in the neck and caused major injury, but that had not

occurred. Tr. 447. Sternfeld’s second immediate concern was that a lung was

punctured, but x-rays showed no evidence of a collapse. Tr. 448. The other stab

wounds did not raise immediate concerns. Tr. 448. Sternfeld’s diagnosis of

Swartz was that “he had suffered multiple stab wounds, uhm, to the left side of his

face, the left neck, the left flank in the back; that these were superficial wounds in

his case and fortunately, in his case, not life threatening.” Tr. 450-51. This

diagnosis was not immediately known, but only determined after complete

examination and further testing. Tr. 451. As a result of the injuries, Swartz

suffered pain and may have permanent scars. Tr. 451-52. All of the injuries,

except the one on the face were closed with staples. Tr. 452. The injury to the

face was left alone because it was “very superficial, it was almost like a scratch.”

Tr. 452. Sternfeld testified that upon arrival, the belief was that there was a

potential for death, but after evaluation, the risk of death was determined to be

minimal. Tr. 453. Swartz was released from the hospital the next day since his

injuries were considered to be minor. Tr. 454-55.

       {¶24} The final witness presented in the State’s case-in-chief was Craig.

Craig testified that she is the officer in charge of the Investigative Unit of the

Tiffin Police Department, Criminal Division. Tr. 464. Craig testified that when

she received the call concerning the stabbing, she responded to the scene. Tr. 466.

After getting a basic overview of the situation, Craig returned to the station to

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prepare an affidavit for a search warrant. Tr. 468. When Craig processed the

scene, she observed signs of a struggle and various spots with blood. Tr. 470.

Craig testified that the knife was located approximately three-fourths of the way

up the sidewalk behind a desk. Tr. 470.

       {¶25} In addition to processing the scene for evidence, Craig also spoke to

various witnesses. Craig testified that she spoke to Swartz on the phone while he

was at St. Vincent’s. Tr. 476. When Craig asked Swartz who had stabbed him,

Swartz identified Deanda as the perpetrator. Tr. 477. Craig also learned that Toni

and Haubert had witnessed portions of the incident and that possibly some of the

children had. Tr. 477. Craig testified that she was told the children were in the

garage playing when the argument started. Tr. 477.

       {¶26} Back at the station, Craig interviewed Deanda and examined him for

injuries. Tr. 493. Craig testified that she saw minor abrasions and scratches on

Deanda and also saw a lump on his head. Tr. 494. There was no bleeding, though

there might have been a small cut on Deanda’s hand. Tr. 494. When Deanda was

booked into the jail, when questioned about whether he was injured, he said no.

Tr. 507. Thus, no medical examination was completed. Tr. 507. Craig proceeded

to interview Deanda and recorded the interview. Tr. 552. The interview was

played for the jury. Tr. 553.

       {¶27} During the interview Deanda stated that Haubert left him for Swartz,

came back to him, then left him again for Swartz. Tr. 558. The night before the

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incident, Deanda heard Haubert and Swartz fighting because he was drunk. Tr.

558. Swartz then went to his car, started it and played music before reving the

engine. Tr. 558. This occurred around four in the morning. Tr. 558. The next

day, Haubert told Deanda that she was done with Swartz and wanted him out of

the home. Tr. 559. Swartz then came back to the home around three or four and

Toni told Deanda to lock the door to keep Swartz out. Tr. 560. Toni was yelling

at Swartz to go away. Tr. 561. Deanda told Craig that Swartz had then gone to

the neighbor’s porch and started calling Deanda derogatory names. Tr. 563.

Haubert was not there because she had left when she received word that Swartz

was coming. Tr. 564. She then came home and she started talking to Swartz. Tr.

565-67. Later Toni and Deanda walked into the garage, and Swartz kept calling

Deanda names. Tr. 567. The situation escalated and Swartz eventually picked up

the dowel rod that was sitting there and struck Deanda with it. Tr. 568. Deanda

stated that Swartz had struck him several times with the stick, so he threw him to

the ground. Tr. 571. Swartz got up and started hitting him again, so he grabbed

the knife and removed it from its case. Tr. 573. Swartz kept hitting him, so he

stabbed him a couple of times with the knife. Tr. 574. Deanda denied that he

wanted to kill Swartz.    Tr. 576.    Deanda denied remembering making the

comments and stated that he was taking medicine to calm himself down. Tr. 578.

Deanda admitted that he had not taken his antipsychotic medicine in two or three

days. Tr. 585. Deanda also admitted that he frequently took the wrong dosage of

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the pills. Tr. 586. Craig testified that during the interview, Deanda had very little

reaction when informed of Swartz’s condition. Tr. 603. Deanda identified the

knife and the jacket as belonging to him. Tr. 603-64.

       {¶28} After the State rested its case, Deanda presented his defense. His

first witness was Harley Makeever (“Makeever”). Makeever was the 10 year old

daughter of Toni. Tr. 631. Just prior to the fight starting, Makeever was in the

garage talking to Toni.    Tr. 634.    Makeever testified there were three other

children in the area. Tr. 634. Just before the fight, Swartz was swinging a

baseball bat at the children. Tr. 634. Makeever estimated that the bat came within

a foot of hitting them and it scared her. Tr. 635. On cross-examination Makeever

testified that she does not like Swartz and does not want him to live in their home.

Tr. 636.

       {¶29} Deanda’s second witness was Joey Deanda (“Joey”), who was the

twelve year old nephew of the defendant. Tr. 637, 639. Joey testified that before

the fight, he, Makeever, and the other children were in the garage. Tr. 640. In

addition, Toni and his grandmother were in the garage. Tr. 641. Swartz was

walking toward the neighbors and calling Deanda “a Spic”. Tr. 641. Later Swartz

pulled a bat away from one of the children and swung it at them. Tr. 642. The bat

came close to him and scared him. Tr. 643. Swartz then threw the bat into the

backyard. Tr. 643. When the fight started, Joey was in the garage and saw the

fight. Tr. 643. Joey testified that Swartz punched Deanda first, then Swartz

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grabbed a stick and started hitting Deanda. Tr. 644. Joey testified that he left

when Deanda grabbed the knife. Tr. 645. On cross-examination, Joey admitted

that he loved his uncle, but did not like Swartz. Tr. 647. Joey also admitted that

he saw Deanda stab Swartz one time. Tr. 648.

      {¶30} Deanda then recalled Toni to the stand to testify on his behalf. Tr.

648. Toni testified that although she lives with Swartz, she only talks to him on

his good days. Tr. 650. Toni testified that based upon her experiences with

Swartz, he is not truthful. Tr. 654. On cross-examination, Toni admitted that she

sometimes does not like Swartz because he is sometimes disrespectful and

mistreats people. Tr. 654-55.

      {¶31} Deanda’s fourth witness was Vicky Deanda (“Vicky”), who was the

defendant’s sister. Tr. 656. Vicky testified that she observed Swartz around the

house in the weeks following the fight.

      {¶32} The final witness for the defense was Deanda. Deanda testified that

he and Swartz did not interact prior to the fight. Tr. 663. The day of the fight

Deanda had earlier confronted Swartz about calling him names, which Swartz

denied. Tr. 665. Immediately before the fight, Deanda walked into the garage

with Toni. Tr. 666. Toni and Haubert were facing away from him while they

worked on a project. Tr. 666. Swartz then walked toward him and “got in my

face.” Tr. 667. The two exchanged words that “were not friendly words.” Tr.

668. Deanda testified that he raised the stick, Swartz took it away from him and

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started hitting him in the head with it. Tr. 668. Deanda testified that he was

handing it to Swartz in a way and he did not understand why he did it. Tr. 669.

According to Deanda, Swartz took the first swing. Tr. 670. Deanda claimed that

he grabbed Swartz by the shirt and pushed him until he fell. Tr. 670. Deanda then

reached down and pulled Swartz up by his collar. Tr. 671. Swartz then began

hitting Deanda with the stick again. Tr. 671. According to Deanda, Swartz pulled

Deanda’s hoodie over his head and kept hitting him. Tr. 671. Deanda stated that

he could only see white spots. Tr. 671. Deanda testified that he pulled Swartz

closer to him to reduce the strength with which Swartz could strike him. Tr. 673.

At the same time, Deanda was pulling the knife out of its sheath with his other

hand. Tr. 673. Deanda then admitted to stabbing Swartz multiple times. Tr. 673.

Deanda claimed that when he stabbed Swartz, Swartz was still hitting Deanda with

the dowel rod. Tr. 674. Deanda claimed that the sole reason for stabbing Swartz

was to get him to stop hitting Deanda and denied wanting to kill Swartz. Tr. 675.

After stabbing Swartz, Swartz fell into the kiln and then got up and started hitting

Deanda again. Tr. 675. Deanda again pushed Swartz down and Swartz picked up

a chair and tossed it at Deanda. Tr. 676-77. After falling the second time, Swartz

finally walked away from Deanda. Tr. 677. Deanda testified that both he and

Swartz could have ended the confrontation at any time and left the garage as

neither was blocking the other. Tr. 678. When Swartz did eventually leave, he

was still holding the dowel rod. Tr. 679.

                                       -19-
Case No. 13-10-23


       {¶33} After the fight, Swartz went up the driveway toward the road. Tr.

679. Deanda testified that he threw the knife to the side and went toward the

house. Tr. 679-80. The police then arrived and told Deanda to put up his hands.

Tr. 681. At that point in time, Deanda admitted that he was mad. Tr. 681.

Deanda claimed that he told the officers he had head injuries and that he was only

trying to defend himself, but the officer told him to “shut up, go to the cruiser.”

Tr. 681. Deanda denied trying to go after Swartz. Tr. 688. Deanda also testified

that he did not recall threatening Swartz, but does remember being loud. Tr. 688.

       {¶34} Deanda testified that while at the jail, he told them that his head was

bruised and that he had severe headaches. Tr. 690. After two or three weeks, a

doctor saw him. Tr. 690. After another two or three months, he was taken to the

hospital for head x-rays. Tr. 690. After the fight, there were lumps, bruises, and

an indented spot on his head. Tr. 691. The doctor ordered the x-ray due to the

indentation.

       {¶35} Deanda testified that he was nervous about Swartz because he had

earlier seen Swartz swing the bat at the children. Tr. 693. He claimed that he

stabbed Swartz because he felt that he had no other option to prevent himself from

being harmed. Tr. 693. Deanda denied that he intended to start a fight with

Swartz or that he was jealous of Swartz. Tr. 693-94. Deanda testified that his past

experience with violent situations affected how he reacted to Swartz on the day of



                                       -20-
Case No. 13-10-23


the incident. Tr. 695. Based upon his experience, Deanda took Swartz’s behavior

as an indication that he wanted to fight Deanda. Tr. 696.

       {¶36} On cross-examination, Deanda again admitted that he had the stick

first and had handed it to Swartz. Tr. 699. Deanda also admitted that he could

have left the garage the first time he knocked Swartz down, but instead chose to

help Swartz up. Tr. 701. Deanda admitted that he had previously been in fights

which resulted in permanent lumps on his head. Tr. 703. When questioned about

the racist comments allegedly made by Swartz, Deanda admitted that they upset

him. Tr. 704. At the conclusion of his testimony, Deanda rested his case.

       {¶37} The State then called Craig on rebuttal. Tr. 714. Craig testified that

the booking sheet indicated that Deanda had not requested medical treatment. Tr.

716. When she examined Deanda, he did not show signs of pain or discomfort

and did not request medical treatment. Tr. 717. At the conclusion of the trial, the

jury returned a guilty verdict of the lesser included offense of felonious assault, a

felony of the second degree. Id. A sentencing hearing was held on May 21, 2010.

Doc. 72. The trial court sentenced Deanda to serve seven years in prison. Id. On

June 8, 2010, Deanda filed his notice of appeal. Doc. 74. Deanda raises the

following assignments of error on appeal.

                            First Assignment of Error

       The trial court erred to the prejudice of [Deanda] by permitting
       the State of Ohio to introduce various instances of inadmissible
       hearsay testimony over the objection of the defense in violation

                                        -21-
Case No. 13-10-23


       of the Fifth, Sixth, and Fourteenth Amendments to the United
       States Constitution, and Article I, Section 10 of the Ohio
       Constitution.

                          Second Assignment of Error

       The trial court erred to the prejudice of [Deanda] by denying the
       proffered testimony of Joey Deanda and Vicki Deanda into
       evidence.

                           Third Assignment of Error

       [Deanda’s] conviction should be overturned because certain
       statements made during the Prosecution’s rebuttal argument at
       closing amount to prosecutorial misconduct.

                          Fourth Assignment of Error

       [Deanda’s] conviction should be overturned because the trial
       court’s instruction of felonious assault as a lesser included
       offense of attempted murder is erroneous and thus the trial
       court committed plain error.

                            Fifth Assignment of Error

       [Deanda’s] conviction was against the manifest weight of the
       evidence.

This court heard the appeal and on February 6, 2012, issued an opinion reversing

the judgment of the trial court based upon the fourth assignment of error. State v.

Deanda, 3d Dist. Seneca No. 13-10-23, 2012-Ohio-408. The State then appealed

to the Ohio Supreme Court. On May 1, 2013, the Ohio Supreme Court reversed

this court’s prior opinion. State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722,

989 N.E.2d 986. The case is now before us on remand.



                                        -22-
Case No. 13-10-23


       {¶38} In the first assignment, Deanda claims that the trial court erred by

allowing the State to introduce hearsay testimony over objection. Hearsay is

defined as “a statement other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Evid.R. 801(C).

       Hearsay is not admissible except as otherwise provided by the
       Constitution of the United States, by the Constitution of the
       State of Ohio, by statute enacted by the General Assembly not in
       conflict with a rule of the Supreme Court of Ohio, by these rules,
       or by other rules prescribed by the Supreme Court of Ohio.

Evid.R. 802.      “Ordinarily, a trial court is vested with broad discretion in

determining the admissibility of evidence in any particular case, so long as such

discretion is exercised in line with the rules of procedure and evidence.” Rigby v.

Lake Cty., 58 Ohio St. 3d 269, 271, 569 N.E.2d 1056 (1991). An appellate court’s

review of the admission of evidence is limited to a determination as to whether the

trial court abused its discretion. Id. “An abuse of discretion connotes more than a

mere error in judgment, it implies that the trial court’s decision was arbitrary,

unreasonable, or unconscionable.” State v. Gutierrez, 3d Dist. Hancock No. 5-10-

14, 2011-Ohio-3126, ¶ 22.

       {¶39} In support of his argument, Deanda lists three instances of alleged

admission of hearsay statements. The first statement was when the State asked

Keefe how he had determined that Deanda was involved in this matter. Keefe

testified that Swartz and another person had identified Deanda as the perpetrator.

                                        -23-
Case No. 13-10-23


Deanda argues that this testimony was offered to bolster the credibility of the

witnesses and offered for the truth of the matter. The testimony offered was this.

       Q. Okay. And were you able to determine the involvement of
       Deanda in this incident?

       A.   Yes.

       Q.   And what was that?

       A. I asked, uhm, [Swartz] and [Haubert], uhm, who had done
       this to [Swartz].

       Mr. Kahler: I’m gonna object, Your Honor.

       The Court: Overruled.

       Mr. Kahler: Hearsay.

       The Court: There is an exception to the hearsay. Overruled.

       The Witness: Uhm, they stated that it was the subject that was
       now being escorted away, uhm, by the other officers that were
       on the scene. I asked who that was and they stated that it was
       [Deanda].

Tr. 176-77. This testimony is a statement by a third party made outside of trial

and not under oath. Thus, it qualifies as a hearsay statement. It also does not

appear to meet the requirements of one of the exceptions to the hearsay rule in that

it was not an excited utterance nor was it a present sense impression, but was a

response made to an officer after the situation was over. However, in order for

this to be reversible error, it must have some element of prejudice. See State v.

Betts, 4th Dist. Pickaway No. 02CA26, 2004-Ohio-818, ¶ 32 and State v.


                                       -24-
Case No. 13-10-23


Sutorious, 122 Ohio App.3d 1, 701 N.E.2d 1 (1st Dist. 1997). Hearsay statements

admitted that are repetitious of admissible statements and are supported by

overwhelming evidence are not prejudicial. State v. Self, 56 Ohio St.3d 73, 82,

564 N.E.2d 446 (1990)

       {¶40} Deanda claims this testimony was prejudicial because it buttressed

the testimony of Swartz and Haubert who both testified at trial later. However,

Keefe did not testify as to the veracity of the statements, just that they were made.

Both Swartz and Haubert testified and Deanda had the opportunity to challenge

the statements made to Keefe. The admissible testimony provided by many of the

witnesses, including Deanda himself, identified Deanda as the person who had

stabbed Swartz. This fact was not disputed during the trial. Additionally, the

State argues in its brief that the statement was merely to show how the

investigation occurred and was not offered for the truth of the matter.           This

argument may be a valid reason for allowing the testimony, though not the one

provided by the trial court. Given all of this, the trial court did not err in allowing

Keefe to testify to what Haubert and Swartz stated at the scene.

       {¶41} The second instance challenged by Deanda as hearsay evidence was

testimony by Vallery as to what an unidentified nurse stated in response to




                                         -25-
Case No. 13-10-23


questions concerning the victim.2 Specifically, the following testimony was given

at trial.

        The Witness: I asked if the doctor who treated him was – would
        be able to speak with me if I came out. They advised that she
        would be able to do that. I responded out to the emergency
        room, uhm, spoke with a Dr. Coleman. I inquired of her about
        the injuries to Mr. Swartz and any other information she could
        give me. Uhm, she informed me that –

        Mr. Kahler: Objection hearsay.

        The Court: Overruled.

        The Witness: She informed me that the victim, [Swartz], had
        seven stab wounds to his person; one being in the face, one being
        in the neck, three in the back, one in the side and one in the
        shoulder.

        Ms. Best: Did you continue to follow-up on Mr. Swartz’s
        condition after that?

        A. Yeah. I asked her about the injuries and whether they were
        life threatening. She advised they had the potential –

        Mr. Kahler: Objection.

        The Court: Sustained.

        The Witness: I – After Mercy Hospital, uhm, I left that location.
        I asked dispatch to get St. Vincent’s Medical Center information
        so I could contact them to learn about his condition.

        Ms. Best: Okay. Were you able to make contact with anyone at
        St. Vincent’s Mercy Medical Center?




2
  Deanda could also have challenged the testimony concerning Dr. Coleman as well, since she was not
called to testify as a witness, but her statements were admitted over objection.

                                               -26-
Case No. 13-10-23


       A. Yeah. I spoke with a forensic nurse there. Uhm, I
       identified myself to her and informed her I was in contact for
       David Swartz. Uhm, she informed me that –

       Mr. Kahler: Objection hearsay.

       The Court: I’m gonna allow this, but we’re having a lot – we’re
       having some information as background, but the Court’s not
       gonna allow too much, only for background purposes.
       Overruled.

       The Witness: She informed me that he didn’t he was – he was
       okay and that his injuries didn’t hit any vital organs. * * *

Tr. 376-77. Neither the doctor nor the forensic nurse mentioned in the above

statements testified at the trial. The State argues that these statements were not

offered for the truth of the matter, and merely to show how the investigation

proceeded. This court notes that Vallery could have shown the process very easily

without resorting to stating what exactly he was told by third parties.         The

testimony concerning the doctor telling Vallery the number of wounds and the

specific locations of the wounds was more than was necessary to explain why

Vallery took the action he did and were hearsay statements.          Likewise, the

statements by the unidentified forensic nurse as to the condition of the victim were

not necessary to show why actions were taken. The same result could have been

reached by Vallery merely stating that he spoke to the nurse who gave him an

update on the victim’s condition. There was no need for Vallery to testify as to

exactly what was said by a third party and no hearsay exception applies. Thus,

these statements were hearsay statements.

                                       -27-
Case No. 13-10-23


      {¶42} As discussed above, to have reversible error for the admission of a

hearsay statement, there must be some prejudice shown. The number of stab

wounds and the condition of Swartz was evidence that was provided by Swartz,

Wise and Sternfeld when they testified. Thus the statements were repetitious. The

facts offered by the statements that Swartz was stabbed multiple times, that he

suffered no serious injury as a result of being stabbed, regardless of what could

have happened, was supported by overwhelming evidence. Without a showing of

prejudice, the admission of the hearsay statements in this instance was harmless.

      {¶43} The third instance of hearsay raised by Deanda was when Craig

testified as to statements made by Swartz.

      A.    I talked to [Toni] and [Haubert] and to [Swartz].

      Q.    How did you talk to [Swartz]?

      A. I was collecting the things and they said, “David is on the
      phone”. And I said, “David Swartz?” And they said, “yes”. And
      I asked to talk to him. He was calling from St. V’s and he was
      saying that they’re gonna keep him.

      Mr. Kahler: Objection, hearsay.

      The Court: Overruled.

      The Witness: He told me that they were keeping him overnight.

      Mr. Kahler: Objection, hearsay.

      The Court: Overruled.

      The Witness: And, uhm, he had staples. And, uhm, I told (sic)
      him, “who did this to you?” and he said –

                                       -28-
Case No. 13-10-23



         Mr. Kahler: Objection hearsay.

         The Court: Overruled.

         The Witness: “David, the guy from upstairs.” I told him I
         needed him to come in and give me a statement. If he was not
         released I would be coming up there within the next day or two.

Tr. 476-77. These statements were not made by a witness who was unavailable,

were not present sense impressions, and were not excited utterances.                                   The

statements to which Craig testified were statements made by Swartz who testified.

These statements were also not necessary to show how the investigation

proceeded. However, these statements were made by a witness who testified at

trial and were thus subject to cross-examination. Additionally, the statement of

identity, as discussed above, was supported by overwhelming evidence including

Deanda’s own admission.                The statement concerning the overnight stay was

admitted not only through Swartz’s testimony, but through the testimony of

Sternfeld. The statements were thus not prejudicial. Having found no prejudice in

the admission of the hearsay statements, the first assignment of error is overruled.

         {¶44} In the second assignment of error, Deanda alleges that the trial court

erred by excluding the proffered testimony of Joey and Vicky.3 Joey was going to

testify that he overheard Haubert telling Swartz a week after the fight that she was

responsible for causing the fight because she had set it up so that Swartz and

3
 No explanation for the exclusion of the evidence was placed upon the record. While there may have been
pretrial discussion or discussion off the record, this court lacks the ability to review that information, so
must merely address the exclusion of the evidence without explanation.

                                                   -29-
Case No. 13-10-23


Deanda would fight. The denial of this testimony is not error because it is not

relevant to the issues before the jury. Relevant evidence is defined as “evidence

having any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be

without the evidence.”           Evid.R. 401.         Evidence that is not relevant is not

admissible. Evid.R. 402. There was no question of fact before the jury regarding

whether the fight occurred or even whether Deanda had stabbed Swartz. That was

undisputed. The issues for the jury were really four questions: 1) Were Deanda’s

actions taken in self-defense?;4 2) Did Deanda intend to kill Swartz?;5 3) How

serious were Swartz’s injuries?;6 and 4) Was Deanda acting under the influence of

serious provocation?7 These four questions would determine what offense, if any,

Deanda should be convicted of. The fact that Haubert may have tried to instigate

the fight between the two adult men does not change the issues before the jury.8

Thus, the evidence did not address a fact of consequence and the trial court did not

err in excluding it.

        {¶45} Deanda also challenges the denial of the testimony of Vicky. Vicky

was going to testify that in the week after the fight, she observed Swartz behaving


4
  This would help determine whether Deanda was guilty of any offense.
5
  This would help determine whether Deanda was guilty of attempted murder by attempting to purposely
kill someone.
6
  This would distinguish between the offenses of felonious assault which requires the causing of serious
physical harm versus mere physical harm that would result in a simple assault charge.
7
  This would distinguish felonious assault from aggravated assault.
8
  The fact that a third party wants two adults to engage in physical combat does not negate the
responsibility of the two adults for their own actions.

                                                 -30-
Case No. 13-10-23


like he normally would and showing no indication of pain or disability. This

evidence arguably could address the question of the seriousness of Swartz’s

injuries and thus may have been relevant. “The admission or exclusion of relevant

evidence is within the sound discretion of the trial court.” State v. Skatzes, 104

Ohio St.3d 195, 2004-Ohio-6391, ¶ 107, 819 N.E.2d 215. Similar testimony to

what Vicky was offering was admitted through the testimony of Toni.

Additionally, Sternfeld testified that Swartz’s injuries were medically considered

to be minor.    Tr. 454-55.   Thus the same testimony that was excluded was

admitted through other channels.        The trial court did not act arbitrarily,

unconscionably, or unreasonably in not allowing the testimony. Even if the trial

court had acted unreasonably, the testimony would have been redundant, so there

was no prejudice. The second assignment of error is overruled.

       {¶46} In the third assignment of error, Deanda challenges statements made

during the rebuttal argument, alleging that the prosecutor engaged in misconduct.

“The test for prosecutorial misconduct is whether the remarks were improper, and,

if so, whether the remarks prejudicially affected the accused’s substantial rights.”

State v. Twyford, 94 Ohio St.3d 340, 354-55, 2002-Ohio-894, 763 N.E.2d 122.

The focus of this test “is the fairness of the trial, not the culpability of the

prosecutor.” Id. (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 947,

71 L.Ed.2d 78, 87 (1982)).



                                       -31-
Case No. 13-10-23


      {¶47} Here, Deanda claims that the following statements made during

closing argument and during the rebuttal closing argument were improper because

the prosecutor injected her personal opinion. This argument is based upon the

following statements of the prosecutor.

      You also heard from the officers that the defendant continued to
      fight with them as he was being placed into custody. And that as
      he was being placed into custody he continued to come after
      David Swartz over and over and over again. He was pulling
      officers along with him yelling “I’m gonna kill you”. But he
      wasn’t trying to kill him, was he?

      Maybe we should take the defendant at what he says. “I’m
      gonna kill you”. Seems pretty clear to me.

      He kept coming after the victim until the officers were finally
      able to put him in the cruiser, all the while yelling at David
      Swartz, “I’ll kill you, honky.” And I’m not gonna use the word,
      “I’ll f’ing kill you” again. Maybe we just misinterpreted that,
      right? I don’t think so.

      ***

      But the worse of them all, on his neck. What could possibly be
      the purpose of stabbing somebody in the neck? Considering
      what the doctor told us, Dr. Sternfeld, and the nurse Megan
      Wise, it’s a pretty serious place to stab somebody. Maybe like
      you’d wanna kill ‘em? Pretty much, yeah, I’d have to say you
      stab somebody in the neck you’re trying to kill ‘em.

      The carotid artery is there, the jugular, platysma muscle. You
      heard Dr. Sternfeld tell you if the platysma muscle, it goes all the
      way across the neck. The defendant told you he wasn’t a doctor.
      So how – I don’t know how he wouldn’t know he was gonna hit
      it. And then there was one on the face also. That one didn’t
      require staples, but we had six others. Do you think maybe, just
      maybe? Nope.


                                          -32-
Case No. 13-10-23


       There’s no reasonable doubt present that the defendant was
       doing anything other than trying to kill the victim.

       ***

       Clearly, the defendant doesn’t like the victim, but it’s all the
       other way around. We got that all wrong, right? I don’t think
       so.

       ***

       The defendant claims to not remember stabbing Mr. Swartz
       seven times. And also that, well, he didn’t really remember
       yelling “I’m gonna kill you, honky” and that sort of thing. He
       didn’t remember any of that because those are the parts that
       makes him very obviously guilty of the charge that he’s been
       charged with; attempted murder.

       But you’re just supposed to believe that he’s honest. Everything
       else says he’s not, but you just should believe him because if he –
       if he says it, well then we just gotta take him for his word, right?

Tr. 823-24, 826-27, 856-57. Deanda argues that these statements showing that the

prosecutor did not believe his statements and allegedly injecting her personal

opinion as to his credibility affected a substantial right. The record does not

support this conclusion. All of these arguments were made in support of the

charge of attempted murder. The prosecutor specifically tells the jury that these

are the reasons why Deanda should be found guilty of attempted murder. All of

the comments had to do with Deanda having a purposeful intent to kill Swartz.

However, the jury found Deanda not guilty of attempted murder.            Thus the

statements were not prejudicial and did not affect a substantial right.



                                        -33-
Case No. 13-10-23


       {¶48} Deanda also claims that the prosecutor committed misconduct by

making misstatements of law.      In support of this argument, Deanda cites to the

misstatement by the prosecutor that Deanda could not claim self-defense because

he claimed to have brought the stick and handed it to Swartz.         The prosecutor

argued that this evidence shows that Deanda did not act in self-defense because he

instigated the fight by giving Swartz a weapon. Deanda correctly claims that the

affirmative defense of self-defense may still be used even if one initially provokes

the incident if proper steps to end the fight are taken. See State v. Melchior, 56

Ohio St.2d 15, 381 N.E.2d 195 (1978). However, a misstatement of law by the

prosecutor is harmless error if the trial court correctly instructs the jury as to the

law. State v. Carter, 72 Ohio St.3d 545, 1995-Ohio-104, 651 N.E.2d 965. Here,

regardless of the statements of the prosecutor, the trial court instructed the jury on

self-defense as follows.

       To establish a claim of self-defense, the defendant must prove by
       the greater weight of the evidence, that he was not at fault in
       creating the situation giving rise to the injuries; and he had
       reasonable grounds to believe, and an honest belief, even if
       mistaken, that he was in immediate danger of death or great
       bodily harm; and, that his only reasonable means of retreat
       from such danger was by the use of deadly force; and he had not
       violate – violated any duty to retreat to avoid the danger.

       Now, the defendant has a duty to retreat if he was at fault in
       creating the situation giving rise to the injuries caused to David
       B. Swartz; and, did not have reasonable grounds to believe, and
       an honest belief that he was in danger of death or great bodily
       harm; and, that a reasonable means of escape from that danger
       other than by the use of deadly force.

                                        -34-
Case No. 13-10-23



       Now, the defendant no longer had a duty to retreat if he
       retreated from the situation, reasonably indicated his intention
       to retreat from the situation and no longer participate in it; and
       he then had reasonable grounds to believe and an honest belief
       that he was in immediate danger of death or great bodily harm;
       and the only reasonable means of escape from that danger was
       by the use of deadly force, even though he was mistaken as to the
       existence of that danger.

       Words alone do not justify the use of force. Resorting to such
       force is not justified by abusive language, verbal threats, or
       other words no matter how provocative.

       In deciding whether the defendant had reasonable grounds to
       believe, and an honest belief that he was in immediate danger of
       death or great bodily harm, you must put yourself in the position
       of the defendant with his circumstances, excuse me, with his
       characteristics, his knowledge, or lack of knowledge, and under
       the circumstances and conditions that surrounded him at the
       time. You must consider the conduct of David B. Swartz and
       decide whether his acts and words caused the defendant to
       reasonably and honestly believe he was about to be killed or
       receive great bodily harm.

       If the defendant used more force than is reasonably necessary,
       and if the force used is greatly disproportionate to the apparent
       danger, then the defense of self-defense is not available.

Tr. 815-17. These instructions are a correct statement of the law and are taken

from the Ohio Jury Instructions. O.J.I., §421 et seq. Since the trial court correctly

instructed the jury as to self-defense, any misstatement of the law by the

prosecutor is not prejudicial. The third assignment of error is overruled.

       {¶49} In the fourth assignment of error, Deanda claims that the trial court

erred by finding that felonious assault is a lesser included offense of attempted


                                        -35-
Case No. 13-10-23


murder. This court has previously ruled on this issue and it was appealed to the

Supreme Court of Ohio. See Deanda, supra. The Supreme Court of Ohio found

that under the facts of this case, the charge of felonious assault is a lesser included

offense of attempted murder. Id. Based upon that decision, the fourth assignment

of error is overruled.

       {¶50} The final assignment of error alleges that the verdict is against the

manifest weight of the evidence. Unlike sufficiency of the evidence, the question

of manifest weight of the evidence does not view the evidence in a light most

favorable to the prosecution.

       Weight of the evidence concerns “the inclination of the greater
       amount of credible evidence, offered in a trial to support one
       side of the issue rather than the other. It indicates clearly to the
       jury that the party having the burden of proof will be entitled to
       their verdict, if, on weighing the evidence in their minds, they
       shall find the greater amount of credible evidence sustains the
       issue which is to be established before them. Weight is not a
       question of mathematics, but depends on its effect in inducing
       belief.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 514

(1997) (citing Black’s Law Dictionary (6 Ed.1990) 1594). A new trial should be

granted only in the exceptional case in which the evidence weighs heavily against

conviction. Id. Although the appellate court acts as a thirteenth juror, it still must

give due deference to the findings made by the jury.

       The fact-finder, being the jury, occupies a superior position in
       determining credibility. The fact-finder can hear and see as well
       as observe the body language, evaluate voice inflections, observe

                                         -36-
Case No. 13-10-23


       hand gestures, perceive the interplay between the witness and
       the examiner, and watch the witness’ reaction to exhibits and the
       like. Determining credibility from a sterile transcript is a
       Herculean endeavor. A reviewing court must, therefore, accord
       due deference to the credibility determinations made by the fact-
       finder.

State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist. 1998).

       {¶51} In order to obtain a conviction against Deanda for felonious assault,

the State was required to prove that Deanda knowingly caused serious physical

harm to Swartz. See R.C. 2903.11(A)(1). Serious physical harm is defined as any

of the following.

       (a) Any mental illness or condition of such gravity as would
       normally require hospitalization or prolonged psychiatric
       treatment;

       (b) Any physical harm that carries a substantial risk of death;

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

       (d) Any physical harm that involves some permanent
       disfigurement or that involves some temporary, serious
       disfigurement;

       (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). The evidence is undisputed that Deanda stabbed Swartz

seven times. Multiple witnesses testified to this fact. Deanda admitted that he

stabbed Swartz multiple times, though he was not sure of the number of times.


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Case No. 13-10-23


There is also no question that these injuries could have been life-threatening,

though they turned out not to be. Deanda unquestionably stabbed Swartz in the

neck and the back. The injury to the back bled substantially. The injuries looked

serious enough to cause Swartz to be transferred via life flight to a trauma one

center in Toledo. There was ample evidence provided that these injuries required

treatment through the use of staples, that they would cause pain, and that they

could leave permanent scars. The jury observed several pictures of the injuries

and heard the medical testimony. There was some testimony that the pain may not

have been severe or that the injuries were rather minor. However, the evidence is

not such that this court would find it weighs heavily against conviction. Thus, the

verdict is not against the manifest weight of the evidence. The fifth assignment of

error is overruled.

       {¶52} Having found no error prejudicial to Appellant, the judgment of the

Court of Common Pleas of Seneca County is affirmed.

                                                              Judgment Affirmed

ROGERS, J., concurs in Judgment Only.

SHAW, J., concurs.

/jlr




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