[Cite as State v. Ryan, 2019-Ohio-5339.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                           No. 108143
                 v.                              :

TREVOR RYAN,                                     :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 26, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-16-607638-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin E. Bringman, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Robert Blanshard McCaleb, Assistant County Public
                 Defender, for appellant.


LARRY A. JONES, SR., J.:

                   Defendant-appellant Trevor Ryan (“Ryan”) appeals his convictions

for felonious assault and kidnapping, which were rendered after a bench trial. For

the reasons set forth below, we affirm.
Factual and Procedural History

              The incident giving rise to this case occurred in June 2016, when, by

Ryan’s own admission, he assaulted the victim, his then-girlfriend. In July 2016, a

Cuyahoga County Grand Jury indicted Ryan with one count each of felonious

assault, domestic violence, and kidnapping. After the bench trial, the trial court

found him guilty on all counts and sentenced him to an aggregate three-year prison

term. The following facts were adduced at trial.

              At the time of the incident, the victim and Ryan were, as mentioned,

dating; they were living together. The victim was employed as a dancer at the

Hustler Club, a downtown Cleveland male entertainment club. The victim worked

the night of the incident; Ryan dropped her off, went out downtown for a little while,

and then returned to the Hustler Club near the end of her shift.

              The victim testified that when Ryan returned to the club, he started

talking to an old friend of hers, Rodney. Everything appeared to be fine, and at the

end of her shift, the victim left the patron area to go to a dressing room to get

changed. As soon as she left the patron area, she received text messages from Ryan

accusing her of sleeping with Rodney.

              The victim got dressed and went outside to find Ryan. Ryan pulled

up in the car and she got in. She testified that as soon as she got in the car, Ryan

yelled at her and assaulted her.     According to the victim, Ryan continuously

assaulted her; first he grabbed her head and hit it against the passenger side window,

and then he grabbed her by her throat. She testified that it was as if Ryan “wanted
to hurt [her], but didn’t want to break the window.” And he was driving in an

“insane” manner: she testified that Ryan “was trying to beat me up with the car, not

just his hands. * * * [he was] slamming on the brakes, trying to get around other

cars, trying to go fast.” She testified that at one point, she grabbed on to the

dashboard so hard that she broke part of the plastic pieces to the vent. The victim

testified that she repeatedly tried to get out of the car, but Ryan would speed up and

make it impossible. Ryan was driving on West 25th Street, where there were groups

of people outside of bars and restaurants. She was dismayed that no one attempted

to help her.

               According to the victim, Ryan got on the highway, and unsuccessfully

attempted to throw her out of the car. During the course of driving, Ryan hit the

emergency brake on the car and he had to get off the highway. He was still assaulting

the victim; a bystander saw, and confronted Ryan. Ryan got out of the car, and the

victim got into the driver’s seat and drove away.

               The victim testified that during the assault she lost consciousness

three times: as soon as Ryan attacked her upon getting into the car, when he was

driving on West 25th Street, and when the bystander was yelling at Ryan. During

each of those episodes, Ryan held his hand to her throat, which caused her to lose

consciousness. She also testified that she urinated on herself during the assault.

               After she took control of the car, the victim drove back to the Hustler

Club. A friend at the club drove her to MetroHealth Hospital. The victim described

her experience at MetroHealth as the “worst experience I’ve ever had in my whole
life.” She testified that she was in a “hallway laying next to a gunshot victim who

literally had a bullet taken out of their leg like it was nothing in the hallway.” She

spoke with a social worker, but no medical professional treated her. The social

worker’s record indicated that the victim told her that she had been “choked” and

“strangled.”1 The records further stated that the victim had “bruises all over her

body, swelling around the neck, and finger marks and scratches on the arms and

shoulders.”

               According to the victim, Ryan texted her while she at MetroHealth,

and despite her being “110 percent” sure that she never told him where she was, he

arrived at MetroHealth. Initially, he was outside, but he eventually came into the

hospital. Although the hospital personnel would not allow Ryan to come into the

hallway area where she was, the victim testified that she was scared because he was

there and the officers on duty told her that they could not arrest him or make him

leave.

               The victim testified that, because of the situation, she called the police

while she was at the hospital, told them that Ryan was there, she needed help, and

she was coming in to a station. She left MetroHealth Hospital and her friend drove



         1We note that the words “choked” and “strangled” were sometimes used
interchangeably by the parties and witnesses. One of the medical professionals who
testified ─ a Sexual Assault Nurse Examiner (“SANE nurse”) from Fairview Hospital ─
explained that they are two different occurrences, however. Specifically, choking is
internal and could occur for example if one’s airway was blocked by food. Strangulation
on the other hand is external pressure on the outside of the neck. It could be caused, for
example, as occurred here, by one having a hand placed on their neck with enough
pressure to restrict the airway.
her to a police station; she stayed on the phone with the 911 dispatcher until she

arrived at the station and made a statement.

               The victim told the police that Ryan had “strangled” her and that she

may have passed out for a few seconds. One of the police officers that she met with

told her that he thought she had a concussion, so she had another friend take her to

Lakewood Hospital, where she was told that she had a head trauma that needed to

be treated at a trauma center, which Lakewood Hospital was not. The medical

records from Lakewood Hospital indicated that the victim had a “concussion

without loss of consciousness.” Because of Lakewood Hospital’s lack of a trauma

center, the victim was transported to Fairview Hospital, where she was examined

and photographed by a SANE nurse. The records from Fairview Hospital indicated

that the victim told the hospital personnel that she lost consciousness for an

unknown amount of time. The discharge notes stated that she suffered a “possible

concussion.”

               On cross-examination, the victim admitted that she did not mention

to any of the hospital personnel at MetroHealth Hospital, the first hospital she went

to, that she had lost consciousness. She explained that she had “victim’s remorse,”

and was trying to protect Ryan.

               A paramedic nurse from MetroHealth testified. She was working at

the time the victim came in. She explained that she was the first encounter for

“anyone who comes through [the emergency department] door, whether they’re a

patient or a visitor.” If the person coming in was a patient, she would assess how
emergent the patient’s needs were, and if the person was a visitor she would assess

whether the person should be granted visitation. The nurse testified that, unless

there is a reason, she would not put any documentation of a visitor in the

corresponding patient’s chart.

               However, she would put documentation in the patient’s chart if the

patient specifically noted that he or she wished to see a particular visitor or not, if

the patient had a general “no visitor” request, or if the visitor exhibited some type of

behavior that she believed would pose a risk to the patient, other patients, or the

hospital staff. She encountered Ryan that evening and made a notation about him

on the victim’s chart.

               Specifically, the paramedic nurse noted that the victim requested that

Ryan not be permitted visitation. Ryan came to the emergency room and asked to

see the victim; she told him no. She testified that he was “agitated,” but left without

incident.

               One of the police officers who met with the victim on the date of the

incident, Officer Melissa Marquard (“Officer Marquard”), also testified.            She

described the victim as crying, sad, fearful, and “almost embarrassed.” Officer

Marquard testified that the victim was “covered in marks on her arms, her chest, her

face. There was ─ her, I believe it was, left eye was completely black and blue. She

had a cut on the top of her head, scratch marks on her neck.” The officer suggested

that the victim seek medical attention and advised her to make changes to her living
arrangement. She referred the case to the detective bureau for a domestic violence

investigation.

                 The SANE nurse from Fairview Hospital testified. She explained that

her job is not limited to examining victims of sexual assault; she also examines

victims of domestic and interpersonal violence. She testified that she had recently

had training in strangulation. The nurse testified that there are “usually not very

many visible injuries to the outside of the neck” when a person is strangled.

Therefore, medical professionals look for other signs, such as a fractured hyoid bone,

fractured tracheal cartilage, loss of control of bowel or bladder, loss of

consciousness, loss of voice, or hoarseness of voice. She described strangulation to

the neck as “very serious.”

                 The victim told the SANE nurse that Ryan was mad at her and so he

hit her head up against the car window and “choked” her. The victim told the nurse

Ryan went “crazy.” The victim said that the assault started as soon as they got into

the car, that he continued even when he got on the highway, he tried to throw her

out of the car, and said he was going to kill her.

                 The victim told the nurse that Ryan “choked” her to the point that she

passed out and she urinated on herself. The nurse testified that the victim urinating

on herself “goes to show there was a loss of consciousness.” The nurse further

testified that some of the victim’s visible injuries were consistent with strangulation

and that some of the visible injuries were indicative of self-inflicted defensive

injuries.
Law and Analysis

               As mentioned, Ryan admits that he assaulted the victim, with whom

he was living at the time and, therefore, that he committed an act of domestic

violence against her. As such, he is not now challenging that conviction. Rather, in

his sole assignment of error, Ryan contends that his felonious assault and

kidnapping convictions were against the manifest weight of the evidence.

               The criminal manifest-weight-of-the-evidence standard addresses

the evidence’s effect of inducing belief. State v. Wilson, 113 Ohio St.3d 382, 2007-

Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380,

386, 678 N.E.2d 541 (1997). Under the manifest-weight-of-the-evidence standard,

a reviewing court must ask the following question: whose evidence is more

persuasive ─ the state’s or the defendant’s? Wilson at id. Although there may be

legally sufficient evidence to support a judgment, it may nevertheless be against the

manifest weight of the evidence. Thompkins at 387; State v. Johnson, 88 Ohio St.3d

95, 723 N.E.2d 1054 (2000).

               When a court of appeals reverses a judgment of a trial court on the

basis that the verdict is against the manifest weight of the evidence, the appellate

court sits as a “thirteenth juror” and disagrees with the fact finder’s resolution of the

conflicting testimony. Wilson at id., quoting Thompkins at id.

               In evaluating a challenge to the verdict based on the manifest weight

of the evidence in a bench trial:
      [T]he trial court assumes the fact-finding function of the jury.
      Accordingly, to warrant reversal from a bench trial under a manifest
      weight of the evidence claim, this court must review the entire record,
      weigh the evidence and all reasonable inferences, consider the
      credibility of witnesses and determine whether in resolving conflicts
      in evidence, the trial court clearly lost its way and created such a
      manifest miscarriage of justice that the judgment must be reversed
      and a new trial ordered.

Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d 1125, ¶ 16

(8th Dist.), citing Thompkins at id. Reversal on manifest weight grounds is reserved

for the “‘exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins at id., quoting Martin at id.

               According to Ryan, the victim’s testimony was “extremely difficult to

credit.” Ryan specifically takes aim at the victim’s testimony that he strangled her

to the point of unconsciousness three times, testimony that the state relied on to

support the “serious physical harm” element of felonious assault. In regard to his

kidnapping conviction, Ryan contends that the victim’s testimony that his conduct

was meant to terrorize her was unbelievable. According to Ryan, her claim lacks the

“certainty and believability to sustain a criminal conviction.”

               Upon review, this is not an exceptional case in which the evidence

weighs heavily against the conviction. In regard to the victim’s claim of losing

consciousness, Ryan contends that the first time she mentioned that it occurred

three times was at trial, which, according to him, discredits her testimony. We

disagree.
               The record establishes that at the time of the incident, the victim

reported at the police station and Fairview Hospital that she was “choked” or

“strangled” to the point of losing unconsciousness.        Prior to trial, she never

quantified how many times the strangulation caused her to lose consciousness ─ but

it is not, for example, a case where she initially reported that it only happened once

and then later at trial testified that it happened three times.        There was no

inconsistency. It is not incredible that in the thick of the moment, she did not report

the specific details about the assault; rather, she was attempting to seek help and

treatment in general. We find her testimony credible. That being said, it is

established that strangling a person to the point of unconsciousness is serious

physical harm. State v. Dozier, 5th Dist. Stark No. 2016CA00114, 2017-Ohio-4173,

¶ 31; State v. Chambers, 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390, ¶ 19, 23;

State v. Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074, ¶ 37-38; State

v. Smith, 9th Dist. Summit Nos. 23468 and 23464, 2007-Ohio-5524, ¶ 27.

               We likewise do not find the victim’s testimony relative to the

kidnapping conviction to be incredible. Although she initially voluntarily got into

the car with Ryan, she testified that she attempted to get out after he started

assaulting her, but he would speed up, making it impossible for her to do so. The

record shows that Ryan restrained her of her liberty for the purpose of terrorizing

her and inflicting serious physical harm on her. In fact, a neutral bystander

witnessed it and confronted Ryan, which led to the victim being able to escape.
               In light of the above, there is no merit to Ryan’s sole assignment of

error and it is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from 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

convictions having been affirmed, any bail pending 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.



LARRY A. JONES, SR., JUDGE

EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
