[Cite as State v. Johnson, 2014-Ohio-4443.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

STATE OF OHIO                                    :           Case No. 13CA3580

        Plaintiff-Appellee,                      :

v.                                               :           DECISION AND
                                                             JUDGMENT ENTRY
ALONZO JOHNSON,                                  :

        Defendant-Appellant.                     :           RELEASED 10/6/2014


                                              APPEARANCES:

Bryan Scott Hicks, Lebanon, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant
Prosecuting Attorney, Portsmouth, Ohio, for appellee.


Hoover, J.
        {¶1}     Defendant-appellant, Alonzo Johnson, was found guilty of felonious assault after

a jury trial in the Scioto County Court of Common Pleas. Johnson contends that his conviction is

not supported by sufficient evidence and is against the manifest weight of the evidence. We

disagree, because after viewing the evidence in a light most favorable to the prosecution, we find

that any rational trier of fact could have found the essential elements of felonious assault proven

beyond a reasonable doubt. Further, a review of the entire record fails to persuade us that the

jury lost its way or created a manifest miscarriage of justice. Accordingly, we affirm the

judgment below.

        {¶2}     On the morning of June 7, 2013, at the Southern Ohio Correctional Facility,

Corrections Officer Jeffrey Meier was on duty when he observed Johnson, an inmate at the

prison, coming out of the chow hall, flailing his arms, swearing, and screaming. Johnson told
Scioto App. No. 13CA3580                                                                          2


Meier, “F U, I have something for you.” Meier then ordered Johnson to put his hands on the wall

so that Meier could pat him down. Meier told Johnson to go back to his bunk and relax, but

Johnson shoved Meier with his left hand and punched Meier in his jaw with his right hand.

Johnson punched Meier in the head a few more times, for a total of three or four punches.

       {¶3}    Meier then moved towards Johnson, grabbed him, and tried to gain control of the

situation by taking him to the ground. This was consistent with the prison officers’ training. They

then fell to the ground, with Johnson landing on top of Meier with his arms around Meier’s neck

in a chokehold. Meier struck his head, shoulder, and arm on the ground. Other prison officers

extricated Meier from Johnson, handcuffed Johnson, and led him away to a more secure area of

the prison.

       {¶4}    Meier was transported to the emergency room of a local hospital, where he was

diagnosed with a closed-head injury, headaches, and sprains of the shoulder, elbow, and hip.

After an MRI on his shoulder revealed a tear of his labrum, Meier underwent surgery to repair it.

During the surgery, the physician discovered a more severe tear of the labrum in the same

shoulder and repaired that during the same procedure.

       {¶5}    In August 2013, a Scioto County grand jury returned an indictment charging

Johnson with one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the

second degree. Johnson entered a not guilty plea, and although the court found him indigent and

offered to appoint counsel for him, Johnson waived his right to counsel and represented himself.

The trial court did appoint him standby counsel. A jury trial was subsequently held at which

Meier testified to the previously stated facts. The testimony of several corrections officers

corroborated Meier's testimony. In addition, a recording of the incident by one of the prison

security cameras further supported Meier's testimony. Meier testified that as a result of Johnson’s
Scioto App. No. 13CA3580                                                                            3


assault on him, he had not been back to work, could not sleep because of the pain in his injured

shoulder, suffered debilitating headaches, did not have the use of his right arm for several

months, could not use his right hand, and could not even hold his child. He gained 25 pounds

because he could not run like he previously had. The state’s evidence was uncontroverted, and

Johnson did not introduce any evidence at trial.

       {¶6}    The jury returned a verdict finding Johnson guilty of felonious assault, and the

trial court sentenced him to a prison term of eight years.

       {¶7}    On appeal, Johnson assigns the following error:

       THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE
       AS WELL AS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶8}    In his sole assignment of error, Johnson contends that his conviction should be

overturned because it is not supported by sufficient evidence and is against the manifest weight

of the evidence. Claims concerning the sufficiency of the evidence and the manifest weight of

the evidence are separate and distinct legal concepts. State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193; State v. Davis, 4th Dist. Ross No. 12CA3336, 2013-

Ohio-1504, ¶ 12.

       {¶9}    “A claim of insufficient evidence invokes a due process concern and raises the

question whether the evidence is legally sufficient to support the verdict as a matter of law.”

State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118. In analyzing the

sufficiency of the evidence, “ ‘our inquiry focuses primarily upon the adequacy of the evidence;

that is, whether the evidence, if believed, reasonably could support a finding of guilt beyond a

reasonable doubt.’ ” State v. Chaffins, 4th Dist. Scioto No. 13CA3559, 2014-Ohio-1969, ¶ 23,

quoting Davis at ¶ 12. “When a court reviews a record for sufficiency, ‘[t]he relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier
Scioto App. No. 13CA3580                                                                              4


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

” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The court must view the

evidence in the light most favorable to the prosecution and defer to the trier of fact on questions

of credibility and the weight assigned to the evidence.” State v. Kirkland, __ Ohio St.3d __,

2014-Ohio-1966, 15 N.E.3d 818, ¶ 132. “A reviewing court will not overturn a conviction on a

sufficiency of the evidence claim unless reasonable minds could not reach the conclusion the

trier of fact did.” Chaffins at ¶ 24, citing State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d

226 (2001).

       {¶10} “Although a court of appeals may determine that a judgment of a trial court is

sustained by sufficient evidence, that court may nevertheless conclude that the judgment is

against the weight of the evidence.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997); Drummond at ¶ 193 (“A claim that a jury verdict is against the manifest weight of

the evidence involves a separate and distinct test [from the sufficiency-of-the-evidence test] that

is much broader”). In reviewing a claim that a conviction is against the manifest weight of the

evidence, the court reviews 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 reversed and a new trial ordered. Hunter at ¶ 119; Thompkins at 387. “The

discretionary power to grant a new trial should be exercised only in the exceptional case in which

the evidence weighs heavily against the conviction.” Id.
Scioto App. No. 13CA3580                                                                               5


       {¶11} For Johnson’s conviction for felonious assault, R.C. 2903.11(A)(1) provides that

“[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *.” “Serious

physical harm to persons” includes “[a]ny physical harm that involves some permanent

incapacity, whether partial or total, or that involves some temporary, substantial incapacity” and

“[a]ny 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)(c) and (e).

       {¶12} The evidence is uncontroverted that Meier incurred serious physical harm as a

result of his altercation with Johnson that resulted in a closed head injury and tears of the labrum

in one of his shoulders that required surgery. This represented at least a “temporary, substantial

incapacity” and involved acute pain caused by his debilitating headaches and shoulder injury that

resulted in his substantial suffering and prolonged pain. Johnson does not dispute this.

       {¶13} Instead, Johnson claims that although he “clearly did take a swing at and hit

Officer Meier in the face,” the evidence “is clear that the injuries to the shoulder and to the head

were not from a punch, but rather from a fall or perhaps in the general melee and scrum that

ensued by the [prison] officers.” He argues that the evidence thus fails because he did not

knowingly cause the serious physical harm suffered by Meier, i.e., he knowingly caused physical

harm to Meier in starting the incident by punching him in his head, but Meier escalated the

incident by attempting to throw Johnson to the floor.

       {¶14} The trial court instructed the jury on these essential elements of felonious assault

by stating:

       Knowingly is an essential element of Felonious Assault. A person acts

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

       probably cause a certain result, or he is aware that his conduct will probably be of
Scioto App. No. 13CA3580                                                                     6


      a certain nature. A person has knowledge of circumstances when he is aware that

      such circumstances probably exist.



      Since you cannot look into the mind of another, knowledge is determined from all

      the facts and circumstances in evidence. You will determine from these facts and

      circumstances whether there existed at the time in the mind of the Defendant, an

      awareness of the probability that his conduct would result in serious physical

      harm to another.



      Cause is an essential element of the offense of felonious assault. A cause is an act

      or a failure to act which, in a natural and continuous sequence, directly produces

      the serious physical harm, and without which it would not have occurred.



      The Defendant’s responsibility is not limited to the immediate or most obvious

      result of the Defendant’s act. The Defendant is also responsible for the natural

      and foreseeable consequences, or results, that follow in the ordinary course of

      events from his actions.



      There may be more than one cause of the victim’s injury. However, if the

      Defendant’s act was one cause, the existence of other causes is not a defense to

      this case. The test of foreseeability is not whether the Defendant should have

      foreseen the injury in its precise form or as to a specific person. The test is

      whether a reasonably prudent person, in light of all the circumstances, would have
Scioto App. No. 13CA3580                                                                             7


       anticipated that serious physical harm was likely to result to anyone from the

       performance of the act.

       {¶15} The trial court’s instructions are consistent with applicable statutory provisions,

pertinent Ohio Jury Instructions, and precedent, and are not specifically challenged by either

party in this appeal. See R.C. 2901.22(B) (“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”); Ohio Jury Instructions, CR Sections 503.11(A) (Rev. 12-11-10)

(felonious assault), 417.11 (knowingly), 417.23 (cause; natural consequences), and 417.25 (other

causes, intervening causes); State v. Young, 4th Dist. Scioto No. 07CA3195, 2008-Ohio-4752, ¶

32, quoting State v. McDaniel, 2d Dist. Montgomery No. 16221, 1998 WL 214606, *7 (May 1,

1998) (in assessing the sufficiency of the evidence to support a felonious assault conviction, this

court noted, “ ‘The test for whether a defendant acted knowingly is a subjective one, but it is

decided on objective criteria. * * * However, if a given result is probable, a person will be held

to have acted knowingly to achieve it because one is charged by the law with knowledge of the

reasonable and probable consequences of his own acts’ ”).

       {¶16} Johnson contends that he could not have reasonably foreseen that after he

punched Meier in the head several times that Meier would grab him and take him down to the

ground and that Meier’s actions constituted an unforeseen intervening act that caused the serious

physical harm suffered by Meier. The state counters that “the standard of proof for the offense

of Felonious Assault has nothing to do with reasonable foreseeability.”

       {¶17} Initially, we note that, notwithstanding the state’s argument on appeal, it argued

that the test of foreseeability was applicable to the offense of felonious assault during its opening
Scioto App. No. 13CA3580                                                                            8


statement, and the trial court’s instructions reflected that. In fact, it has been held that a

foreseeability instruction is appropriate for the “knowingly” mens rea requirement in a felonious

assault case:

        “The legal concept of ‘knowingly’ incorporates the scienter requirement that one

        ought to know one’s actions will ‘probably cause certain results.’ The concept of

        reasonable probability literally embraces the concept of foreseeability. Rather

        than reduce the state’s burden, the instructions ostensibly provide clarity into the

        meaning and import of ‘probabilities,’ i.e., a term necessarily built into the

        definition of the mens rea requirement for the underlying crime.”

See State v. Barker, 11th Dist. Portage No. 2010-P-0044, 2012-Ohio-522, ¶ 114, quoting State v.

Magnusson, 11th Dist. Lake No. 2006-L-263, 2007-Ohio-6010, ¶ 51.

        {¶18} “ ‘It is a fundamental principle that a person is presumed to intend the natural,

reasonable and probable consequences of his voluntary acts.’ ” State v. Conway, 108 Ohio St.3d

214, 2006-Ohio-791, 842 N.E.2d 966, ¶ 143, quoting State v. Johnson, 56 Ohio St.3d 35, 39, 381

N.E.2d 637 (1978); State v. Champlin, 11th Dist. Ashtabula No. 2013-A-0021, 2014-Ohio-1345,

¶ 22; State v. Mynes, 4th Dist. Scioto No. 12CA3480, 2013-Ohio-4811, ¶ 17. “[T]he jury, unable

to enter the mind of another, is required to consider common-sense, causal probabilities in

considering whether the defendant acted ‘knowingly.’ ” State v. Kelly, 11th Dist. Portage No.

2010-P-0049, 2012-Ohio-523, ¶ 23.

        {¶19} It is unquestioned that Johnson set into motion the sequence of events by

punching Meier in the head several times. The jury could have reasonably inferred from those

punches themselves that Johnson had caused serious physical harm to Meier resulting in his

closed-head injury and recurring, debilitating headaches. See State v. Wells, 5th Dist. Stark No.
Scioto App. No. 13CA3580                                                                        9


2009 CA 00168, 2010-Ohio-3126, ¶ 27 (felonious assault statute “does not require a certain

number of punches to be thrown to support a conviction, it only requires a showing that the

offender caused serious physical harm”); State v. Smith, 4th Dist. Ross No. 06CA2893, 2007-

Ohio-1884 (affirming convictions for felonious assault and involuntary manslaughter caused by

a single punch).

       {¶20} More importantly, Johnson could have reasonably foreseen that his unprovoked

inmate attack on a prison guard would result in the guard he assaulted and other guards following

prison protocol by attempting to restrain him by taking him down to the ground. Meier’s injuries

were consequently reasonably foreseeable to Johnson and they would not have occurred if

Johnson had not started the altercation by punching Meier.

       {¶21} For the causation element, we noted the following in Smith at ¶ 24-26:

       Courts generally treat the issue of legal causation in the criminal context similarly

       to that in tort cases because the situations are closely analogous. See, generally,

       LaFave Substantive Criminal Law (2003), 2nd Ed., Section 6.4(c). When dealing

       with claims of intervening causation, the proper analysis starts with a

       determination of whether the intervening act was a mere coincidence or

       alternatively, a response to the accused's prior conduct. Id at 6.4(f). An

       intervening cause is a coincidence when the defendant's act merely places the

       victim at a certain place at a certain time, thus subjecting the victim to the

       vagaries of the intervening cause. LaFave gives the example of “A” shoots at “B”

       but misses. “B” then varies from his intended route, is struck by lightning, and

       dies. Had “B” continued on his anticipated route, he would not have been injured.

       The lightening is a coincidence.
Scioto App. No. 13CA3580                                                                         10




       An intervening act is a response to the prior acts of the defendant where it

       involves reaction to the condition created by the defendant. Again from LaFave,

       “A” shoots “B” who is standing near the edge of a cliff. “B” impulsively jumps

       off the cliff rather than being the target of a second shot. This impulse may fairly

       be characterized as a normal response.



       This distinction is important because the law will impose a less exacting standard

       of legal causation where the intervening cause is a response rather than a

       coincidence. A coincidence will break the chain of legal causation if it was

       unforeseeable. Thus, in the first example “A” is not criminally liable for “B's”

       death, notwithstanding he may be charged with an “attempt.” However, for a

       response to break the chain, it must be both abnormal and unforeseeable. Id. The

       distinction is premised upon a notion of fairness that finds less reason to hold a

       defendant liable for bad results where the defendant has merely caused the victim

       to “be at the wrong place at the wrong time.” A defendant who has brought the

       intervening agency into play in response to the danger he has caused is subjected

       to a more stringent test if he is to break the chain of causation. Thus, in the

       second example, “A” will face potential criminal liability for “B's” death.

       {¶22} Assuming that Meier’s actions constituted intervening acts, they were a

reasonable, foreseeable response to the repeated punches by Johnson to his head rather than a

mere coincidence. Because Meier’s actions in attempting to restrain and neutralize Johnson were

neither abnormal nor unforeseeable, they did not break the chain of causation so as to relieve
Scioto App. No. 13CA3580                                                                              11


Johnson from criminal liability for felonious assault related to the serious physical injuries

incurred by Meier when Johnson fell on top of him after he attempted to take him to the ground.

       {¶23} As the jury was properly instructed, despite the potential existence of multiple

causes for Meier’s injuries, Johnson was “responsible for the natural consequences of his actions

and the multiple causes are not a defense.” State v. Nichols, 11th Dist. Lake No. 2005-L-017,

2006-Ohio-2934, ¶ 50. Although Meier’s injuries may not have been the “immediate or most

obvious result” of Johnson’s initial punches to Meier’s head, they were the “natural and

foreseeable consequences” of the actions that followed “in the ordinary course of events.” See

State v. Fair, 2d Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 66, 69, citing Ohio Jury

Instructions, CR Section 417.23 (upholding the trial court’s use of this jury instruction in a

felonious assault case).

       {¶24} Thus, after viewing the evidence in a light most favorable to the prosecution, we

conclude that there was sufficient evidence for a rational trier of fact to find that the essential

elements of felonious assault had been proven beyond a reasonable doubt. That is, the

uncontroverted evidence was sufficient for the jury to determine that Johnson knowingly caused

serious physical harm to Meier during his prison attack.

       {¶25} Moreover, the weight of the evidence supports the jury finding that Johnson was

guilty of felonious assault. That is, the evidence established that Johnson knowingly caused

serious physical harm to Meier by repeatedly punching him in his head without provocation,

which set off a reasonably foreseeable sequence of events in which Meier attempted to restrain

Johnson by taking him to the ground, resulting in further injuries to Meier. The jury neither lost

its way nor created a manifest miscarriage of justice by so finding. Therefore, viewing the
Scioto App. No. 13CA3580                                                                         12


evidence in its totality, and deferring to the jury’s credibility determinations, we cannot conclude

that this is an exceptional case in which the evidence weighs heavily against the conviction.

       {¶26} Based on the foregoing, Johnson’s assignment of error is overruled, and the

judgment of the Scioto County Court of Common Pleas is affirmed.

                                                                        JUDGMENT AFFIRMED.
Scioto App. No. 13CA3580                                                                              13


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

        The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Scioto County
Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J.: Concurs in Judgment and Opinion.
McFarland J.: Concurs in Judgment Only.

                                                For the Court


                                                BY: ________________________
                                                    Marie Hoover, Judge



                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
