[Cite as State v. Frazier, 2011-Ohio-1206.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Willilam B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 2010CA00172
DARRELL FRAZIER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2010CR0318


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         March 14, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO,                               MATTHEW PETIT
PROSECUTING ATTORNEY,                          116 Cleveland Ave. North
STARK COUNTY, OHIO                             Suite 808, Courtyard Centre
                                               Canton, Ohio 44702
BY: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010CA00172                                                     2

Hoffman, P.J.


       {¶1}   Defendant-appellant Darrell Frazier appeals his conviction and sentence

entered by the Stark County Court of Common Pleas, on one count of felonious assault,

following a jury trial. Plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On April 2, 2010, the Stark County Grand Jury indicted Appellant on one

count of felonious assault, in violation of R.C. 2903.11(A)(1) and/or (A)(2). Appellant

appeared before the trial court for arraignment on April 9, 2010, and entered a plea of

not guilty to the Indictment. The matter proceeded to jury on June 7, 2010.

       {¶3}   Ronald Gillespie, Jr. testified he and his cousins, Percy Goodman and

Antonio Goodman, were at Sparky’s, a bar in Canton, on December 27, 2009,

celebrating his upcoming twenty-first birthday.         Another cousin, Evelyn Robinson,

subsequently joined the three men. The bar closed before 2:00am due to an unrelated

fight between other bar patrons. Appellant and his cousins exited the bar and walked

toward the adjoining parking lot.       Appellant, James Rianelli, Cortez Everett, Cedric

Gaines, and Nicholas Harvey were also patrons at Sparky’s that evening, and exited at

approximately the same time as Gillespie and his cousin.

       {¶4}   While in the parking lot, Percy Goodman and Rianelli exchanged some

words which led to a physical altercation. Everett moved toward Percy Goodman and

joined the fray when it appeared Percy Goodman had the better of Rianelli. Antonio

Goodman, upon observing Everett advancing toward his brother, joined the fight.

Gillespie stayed with Robinson, who was pregnant, closer to the building.         Everett

eventually approached Gillespie, who prepared to defend himself.          A fight ensued
Stark County, Case No. 2010CA00172                                                       3


between Everett and Gillespie during which Gillespie observed Appellant moving toward

him and then eventually standing behind him. Gillespie turned around and hit Appellant

“back off of” him. Gillespie turned his attention back toward Everett, taking his focus off

of Appellant. Someone shouted, “Watch out, he got something!” as Gillespie turned to

his right he was struck and fell to the ground, unconscious. Percy Goodman, who was

still fighting with Rianelli, heard girls screaming, “He hit him with something! He hit him

with something!” The crowd dispersed as paramedics and police arrived at the scene.

       {¶5}   Evelyn Robinson testified she was standing with Gillespie when the fight

between Percy Goodman and Rianelli ensued. Robinson recalled Everett approaching

Gillespie after he had been prevented from interfering with the Percy Goodman-Rianelli

fight. Robinson described Everett as approaching in a threatening manner. Because

Gillespie was getting the better of his friend, Appellant advanced toward Gillespie to

assist Everett.   Gillespie turned toward Appellant, hit him and knocked him back.

Robinson then observed Appellant pull a set of brass knuckles out of his pocket, and

strike Gillespie in the back of the head. Gillespie, who was rendered unconscious, fell

to the ground. Appellant and Everett attempted to stomp on Gillespie, but Robinson

stood over him. Appellant and Everett left the scene before the police arrived.

       {¶6}   Gillespie was transported to the hospital. He sustained a broken facial

bone and a split tongue as well as a concussion.         Doctors placed Gillespie into a

medically induced coma. The damage to his eye caused by Appellant’s punch required

plastic surgery. Gillespie did not regain consciousness from the time Appellant hit him

until two weeks later when doctors awoke him from the medically induced coma.

Gillespie was placed on a respirator while in the coma.        The respirator caused an
Stark County, Case No. 2010CA00172                                                   4


infection which was so severe doctors had to perform a tracheotomy on him. Gillespie

was discharged from the hospital on January 16, 2010. However, he was still receiving

medical care for his injuries at the time of the trial.

       {¶7}   Appellant testified on his own behalf. Because he believed Rianelli was

getting the better of Percy Goodman, Appellant stood back to make sure no one came

to Goodman’s defense. Appellant believed Gillespie was going to join the fray to help

his cousin so Appellant struck Gillespie in the jaw.      Appellant denied using brass

knuckles.

       {¶8}   After hearing all the evidence and deliberating, the jury found Appellant

guilty as charged. The trial court sentenced Appellant to a term of imprisonment to a

term of six years.

       {¶9}   It is from this conviction and sentence Appellant appeals, raising the

following assignments of error:

       {¶10} “I. THE TRIAL COURT’S FINDING OF GUILT WAS AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶11} “II. THE APPELLANT WAS DEPRIVED OF DUE PROCESS OF BY THE

MISCONDUCT OF THE PROSECUTOR.

       {¶12} “III. THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS

AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED

INEFFECTIVE ASSISTANCE.”

                                                    I

       {¶13} In his first assignment of error, Appellant challenges his conviction as

against the manifest weight and based upon insufficient evidence.
Stark County, Case No. 2010CA00172                                                      5


      {¶14} On review for manifest weight, a reviewing court is to examine the entire

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

witnesses and determine whether in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

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

judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N .E.2d 541

superseded by constitutional amendment on other grounds as stated by State v. Smith,

80 Ohio St.3d 89, 1997-Ohio-355, 684 N .E.2d 668, citing State v. Martin (1983), 20

Ohio App.3d 172, 175, 485 N.E.2d 717. Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass

(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.

      {¶15} “An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the

syllabus, superseded by constitutional amendment on other grounds in State v. Smith,

80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668.
Stark County, Case No. 2010CA00172                                                      6


      {¶16} Appellant was convicted of one count of felonious assault, in violation of

R.C. 2903.11(A)(1) and/or (A)(2), which provides:

      {¶17} (A) No person shall knowingly do either of the following:

      {¶18} (1) Cause serious physical harm to another or to another's unborn;

      {¶19} (2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance.

      {¶20} Appellant asserts the State failed to prove he knowingly caused serious

harm to Gillespie or caused physical harm to Gillespie using brass knuckles. Appellant

further contends the evidence was insufficient to support his conviction as he was acting

in defense of another.

      {¶21} The culpable mental state of “knowingly” is defined as follows: “A person

acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.”

R.C. 2901.22(B).

      {¶22} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Huff (2001), 145 Ohio App.3d 555, 563, 763 N.E.2d 695.

(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a

subjective one, but it is decided on objective criteria.” State v. McDaniel (May 1, 1998),

Montgomery App. No. 16221, (citing State v. Elliott (1995), 104 Ohio App.3d 812, 663

N.E.2d 412).
Stark County, Case No. 2010CA00172                                                      7


      {¶23} R.C. 2901.01(A)(5) defines “serious physical harm” as “[a]ny physical

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

some temporary, substantial incapacity.” When a victim's injuries are serious enough to

cause him to seek medical treatment, the jury may infer the victim suffered serious

physical injury. State v. McCoy (Sept. 7, 2000), Franklin App. No. 99AP-1048, citing

State v. Winston (1991), 71 Ohio App.3d 154, 593 N.E.2d 308;

      {¶24} The evidence reveals Gillespie and Robinson remained away from the

fray because of Robinson’s pregnancy.        Everett approached Gillespie to fight and

Gillespie was getting the better of Everett, and Appellant proceeded toward Gillespie to

assist his friend.   Gillespie punched Appellant off his back.     Thereafter, Appellant

returned with a pair of brass knuckles and knocked out Gillespie with a single punch.

Although Appellant insists he did not have brass knuckles, the testimony is viewed in a

light most favorable to the prosecution, resolving any disputes in favor the State. We

find the State presented sufficient evidence for the jury to find the essential element of

knowingly as Appellant, after being pushed out of the fight between Everett and

Gillespie, returned with a pair of brass knuckles and knowingly struck Gillespie, causing

serious physical harm.

      {¶25} In support of his position the verdict was against the manifest weight of the

evidence, Appellant notes Evelyn Robinson was the only witness who testified to

observing him strike Gillespie with brass knuckles. Both Rianelli and Everett testified

they did not see Appellant with brass knuckles. Appellant further adds the police did not

recover brass knuckles and such were not introduced into evidence.              Appellant
Stark County, Case No. 2010CA00172                                                       8


concludes, as a result, the State failed to prove he caused physical harm to Gillespie by

means of a deadly weapon.

      {¶26} As we have often stated, the jury is free to accept or reject any or all of the

testimonies of the witnesses. The jury obviously found Evelyn Robinson more credible

than Appellant and his witnesses.

      {¶27} Based upon the foregoing and the entire record in this matter, we find

Appellant’s conviction is neither against the manifest weight of the evidence or based

upon insufficient evidence.

      {¶28} Appellant’s first assignment of error is overruled.

                                               II

      {¶29} In his second assignment of error, Appellant argues he was deprived of

due process as the result of prosecutorial misconduct.

      {¶30} The test regarding prosecutorial misconduct in closing arguments is

“whether the remarks were improper and, if so, whether they prejudicially affected

substantial rights of the defendant.” State v. Smith (1984), 14 Ohio St.3d 13, 14, 470

N.E.2d 883; State v. Hessler (2000), 90 Ohio St.3d 108, 125, 734 N.E.2d 1237.

      {¶31} Specifically, Appellant takes issue with the prosecutor’s statement during

closing arguments Appellant “punched [Gillespie] in the head and sent him to the

hospital for weeks. Put him in a coma for weeks.” Appellant submits such statement

was prejudicial because Gillespie was placed into a medically induced coma. Appellant

also takes issue with the prosecutor’s statement the F.B.I. Fugitive Task Force was

looking for him as the comment inferred Appellant was the subject of an F.B.I.

investigation separate and apart from the instant action.
Stark County, Case No. 2010CA00172                                                    9


       {¶32} Upon review of the record, we find the prosecutor’s statement regarding

Appellant’s putting Gillespie into a coma for two weeks, while arguably a technical

misstatement, did not result in prejudice sufficient to rise to the level of misconduct

when taken in context with the entire closing argument. Further, the comment was

factual as Gillespie was placed into a medically induced coma due to the injuries

inflicted upon him by Appellant.

       {¶33} With respect to the statement regarding the F.B.I. involvement in locating

Appellant after the incident, we find the prosecutor’s comments were not improper and

Appellant was not prejudiced thereby.

       {¶34} Appellant’s second assignment of error is overruled.

                                              III

       {¶35} In his final assignment of error, Appellant raises a claim of ineffective

assistance of trial counsel.

       {¶36} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry in whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838,

122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

       {¶37} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties
Stark County, Case No. 2010CA00172                                                         10


inherent in determining whether effective assistance of counsel was rendered in any

given case, a strong presumption exists that counsel's conduct fell within the wide range

of reasonable, professional assistance. Id.

       {¶38} In order to warrant a reversal, the appellant must additionally show he was

prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors

were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.

Strickland 466 U.S. at 687, 694, 104 S.Ct. at 2064; 2068. The burden is upon the

defendant to demonstrate that there is a reasonable probability that but for counsel's

unprofessional errors, the result of the proceeding would have been different. Id.;

Bradley, supra at syllabus paragraph three. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra.

       {¶39} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697. Accordingly,

we will direct our attention to the second prong of the Strickland test.

       {¶40} Appellant asserts trial counsel was ineffective for failing to require the

State to select one theory of its case as the Indictment charged Appellant with two

different subsections of the felonious assault statute. We find Appellant is unable to

satisfy either the first or the second prong of Strickland test. The evidence presented at

trial was sufficient to convict Appellant under each subsection and we know of nothing

that prevents the State from presenting alternative theories to support the indictment.

We find the alternative theories presented herein are not inconsistent .
Stark County, Case No. 2010CA00172                                          11


      {¶41} Based upon the foregoing, Appellant’s third assignment of error is

overruled.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ John W. Wise _____________________
                                       HON. JOHN W. WISE


                                       s/ Julie A. Edwards___________________
                                       HON. JULIE A. EDWARDS
Stark County, Case No. 2010CA00172                                                 12


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
DARRELL FRAZIER                            :
                                           :
       Defendant-Appellant                 :         Case No. 2010CA00172


       For the reasons stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
