[Cite as State v. Powell, 2014-Ohio-5541.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 2014CA00071
                                               :
JACOB D. POWELL                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2013CR1722



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 15, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JOHN D. FERRERO                                    MARY G. WARLOP
STARK COUNTY PROSECUTOR                            Abney Law Office, LLC
                                                   116 Cleveland Ave. NW, Suite 500
RONALD MARK CALDWELL                               Canton, OH 44702
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2014CA00071                                                       2

Delaney, J.

            {¶1} Defendant-Appellant Jacob D. Powell appeals his April 14, 2014

conviction and sentence by the Stark County Court of Common Pleas. Plaintiff-Appellee

is the State of Ohio.

                            FACTS AND PROCEDURAL HISTORY

            {¶2} On December 10, 2013, the Stark County Grand Jury indicted Defendant-

Appellant Jacob D. Powell on one count of Felonious Assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1), and one count of Domestic Violence, a felony

of the fifth degree in violation of R.C. 2919.25(A). Powell entered a plea of not guilty.

The matter proceeded to a jury trial on April 2, 2014. The following facts were adduced

at trial.

            {¶3} On November 3, 2013, Powell resided with his girlfriend, Jennifer Herning,

and their child in an apartment located in Canton, Ohio. Herning was the mother of

Powell's one-year old child. Herning was seven months pregnant with Powell's second

child.

            {¶4} On the evening on November 3, 2013, Powell was asleep in his "man

cave" in the basement of the apartment. Herning and the child were upstairs sleeping.

The child woke up and would not go back to sleep. To help the child sleep, Herning and

Powell would usually drive the child in the car.

            {¶5} Herning knocked on the door to Powell's room in the basement and then

banged on it to get Powell's attention so he could take Herning and the child for a drive.

The door to Powell's room had a latch on the inside and the door would not open.

Herning kicked the door and the latch came open. Herning found Powell sleeping in his
Stark County, Case No. 2014CA00071                                                       3


room. Herning tried to wake Powell up by talking to him and moving him, but he would

not wake up. The child was upstairs crying, so Herning went upstairs to check on the

child and then came back downstairs to get Powell. Herning was able to wake Powell

and he said he was getting up. Herning went back upstairs to get the child. She came

downstairs and saw that Powell had fallen back to sleep. Herning tried to wake him up.

She went upstairs and stomped on the floor to get Powell's attention. Powell woke up

and came upstairs.

       {¶6} Herning explained that they needed to go for a drive in the car to put the

child to sleep. Powell attempted to lie down with the child to put the child back to sleep,

but the child woke up again. Herning insisted that they needed to drive the child in the

car and she went downstairs to get Powell's glasses so he could see to drive. When

Herning came back upstairs, she heard Powell swearing and she thought Powell was

drunk. Herning went to use the bathroom and Powell followed her into the bathroom.

       {¶7} After Herning finished using the bathroom, Powell slammed the bathroom

door shut and Herning retreated to the wall. Powell began hitting her about the head

with his fists. Herning asked Powell to let her out to check on the child who could fall

down the stairs. Powell let her out of the bathroom and Herning went downstairs to latch

the basement door. Herning went to the mudroom where Powell followed her and he

resumed hitting her. Herning punched Powell once, but she fell to the floor and she

grabbed onto Powell's leg. Powell tripped and fell, but he got up. Herning threw a plastic

storage container at him. Herning got up and went to the living room, sat on a chair, and

attempted to call for help on her cell phone.
Stark County, Case No. 2014CA00071                                                    4


      {¶8} Powell grabbed her cell phone away from her and threw the plastic

storage container at her. The container bounced off Herning and hit the child. Herning

checked on the child and the child was not hurt.

      {¶9} Powell then grabbed Herning and pinned her to the ground. She was lying

on her back and Powell was sitting on her stomach. He started choking her with his

hands. When he let go for a moment, Herning told him to get off her belly and he got off

her stomach, but continued to choke her. Herning vomited while he was choking her but

she was able to turn her head to clear her mouth.

      {¶10} Powell let go and walked away. Herning next recalled they were in the

bedroom. Powell started choking her again and screaming at her. Herning recalled

being on the ground, while Powell choked her from behind and slammed her head into

the ground by her hair. He screamed at her, punched her, and kicked her on the right

side of her body. He stomped on her back. He bit her right finger, her cheek, and the

back of her head. He walked out of the bedroom and then he returned to continue

choking and punching Herning. Herning was in front of the bed and lying on the ground.

Powell kicked her in the chest. Herning moved so Powell would not kick her in the

stomach. After Powell let her go at one point, Herning saw her child standing at the bed

and looking at her mother.

      {¶11} Powell left the room and went to the basement. Herning left the house

and ran to the neighbor's home. She knocked on the door and the neighbor let her in.

Herning told her neighbor that her boyfriend had beaten her up and she needed medical

help. The neighbor called 911. Herning ran back to her home to get her child. Powell

had gone outside so Herning entered the apartment and locked the doors. Powell
Stark County, Case No. 2014CA00071                                                      5


smashed a window in the apartment. Herning grabbed the child, went out the back door,

and fled back to the neighbor's home.

       {¶12} While waiting for the paramedics, the neighbor saw Herning bleeding

profusely and her blood was getting on the floor. The neighbor saw Powell across the

street. Powell told the neighbor that he had been asleep when Herning attacked him.

The neighbor asked Powell to leave. When the police arrived at the neighbor's home,

Powell drove away.

       {¶13} City of Canton Police Officer Philip Johnson and his partner responded to

the 911 call. When the officers arrived, the paramedics were already treating Herning.

When Johnson spoke with Herning, she was crying and hysterical. The officer noticed

that Herning was covered with blood and vomit. Johnson observed multiple bruises on

Herning's face and body, as well as teeth marks on her cheek. Johnson tried to get a

written statement from Herning but she was too upset. Later, at the hospital, the officers

told Herning's mother that she could write the statement for her daughter.

       {¶14} One of the paramedics treating Herning told Johnson that Powell was

going to leave the area. Johnson went outside to stop Powell but he got into his car and

drove away. The officers pursued Powell and eventually pulled him over. Powell was

covered in blood and crying. He was placed under arrest and he complained of pain

throughout his body. Johnson noticed scratches on Powell's arm and he was taken to

Aultman Hospital. Powell was cleared with minor abrasions.

       {¶15} Herning was admitted to Mercy Medical Center for several days due to her

injuries and concerns for her pregnancy. The fetus did not appear to be injured.
Stark County, Case No. 2014CA00071                                                       6


         {¶16} Shawanna Musick, a forensic nurse with Mercy Medical Center, took

Herning's medical history. Musick's examination showed petechia, the bursting of blood

vessels, in Herning's eyes, ear canals, face, chest, and neck. Musick testified that

petechia occurred within 15 to 30 seconds of strangulation. The blood vessels burst due

to lack of oxygen. Musick testified the lack of oxygen to the mother could also harm the

fetus. Musick also observed bruising, swelling, and bite marks on Herning's body.

Herning's injuries stuck out to Musick because she usually observed handprints due to

strangulation. In Herning's case, there was so much swelling in her neck that she felt

there was a lot of force applied. Musick testified that she was surprised Herning was still

alive.

         {¶17} At the closing of the State's case, Powell moved for dismissal of the

charges pursuant to Crim.R. 29. The trial court denied the motion. The defense rested

and renewed its Crim.R. 29 motion. The trial court denied the motion.

         {¶18} The jury deliberated and returned a verdict of guilty on both charges.

         {¶19} A sentencing hearing was held on April 7, 2014. The trial court sentenced

Powell to five years for his conviction for Felonious Assault. The trial court merged the

Domestic Violence conviction with the Felonious Assault conviction.

         {¶20} Powell now appeals.

                                ASSIGNMENT OF ERROR

         {¶21} Powell raises one Assignment of Error:

         {¶22} "I. THE JURY'S FINDING OF GUILT WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE."
Stark County, Case No. 2014CA00071                                                        7


                                        ANALYSIS

       {¶23} In his sole Assignment of Error, Powell argues his conviction is against the

manifest weight and sufficiency of the evidence. We disagree.

       {¶24} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “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.”

       {¶25} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

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

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
Stark County, Case No. 2014CA00071                                                       8


evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

       {¶26} Powell was charged with and convicted of one count of Felonious Assault,

in violation of R.C. 2903.11(A)(1). The statute states that, "[n]o person shall knowingly *

* * [c]ause serious physical harm to another or to another's unborn." "Serious physical

harm" is defined by R.C. 2901.01(A)(5) as:

       (5) “Serious physical harm to persons” means 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.

       {¶27} Powell was also convicted of a violation of R.C. 2919.25(A). The statute

states, "[n]o person shall knowingly cause or attempt to cause physical harm to a family

or household member." Powell does not dispute that Herning was a "family or

household member" for purposes of the domestic violence statute.

       {¶28} Powell argues the evidence demonstrates that his conviction was not

supported by sufficient evidence and was against the manifest weight of the evidence.
Stark County, Case No. 2014CA00071                                                       9


He states that Herning admitted to attempting to wake Powell by physically shaking him

and kicking him. He also argues that Herning gave multiple statements to the police

about the incident, including a statement that was written by her mother.

       {¶29} The evidence shows that Herning did attempt to wake Powell, but there is

no evidence that Powell suffered any injury from her actions. Powell's only noted injury

was minor abrasions he suffered when he broke the glass in the apartment attempting

to gain entrance when Herning locked the doors. The evidence in this case clearly

demonstrates Powell responded to being awakened by Herning by punching, biting,

kicking, and strangling Herning in the presence of their one-year old child. The

witnesses in this case observed Herning covered in blood and vomit after the incident,

with multiple bruises and bite marks on her body. Herning required a hospital stay due

to her injuries and because of the possible harm to the fetus.

       {¶30} We find reasonable triers of fact could have found, beyond a reasonable

doubt, Powell knowingly caused serious physical harm to Herning for purposes of R.C.

2903.11(A)(1) and knowingly caused or attempted to cause physical harm to a family or

household member for purposes of R.C. 2919.25(A). Powell's convictions for Felonious

Assault and Domestic Violence are supported by sufficient evidence.

       {¶31} Further, upon review of the trial record we find the jury did not clearly lose

its way and create a manifest miscarriage of justice requiring that Powell's conviction be

reversed and a new trial ordered.

       {¶32} Powell's sole Assignment of Error is overruled.
Stark County, Case No. 2014CA00071                                                10


                                  CONCLUSION

      {¶33} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Gwin, P.J. and.

Hoffman, J., concur.
