[Cite as State v. Bauman, 2018-Ohio-4913.]




             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                               COLUMBIANA COUNTY

                                         STATE OF OHIO,

                                         Plaintiff-Appellee,

                                                 v.

                                    STEPHEN R. BAUMAN,

                                      Defendant-Appellant.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 CO 0016


                                 Criminal Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2015 CR 380

                                        BEFORE:
                 Gene Donofrio, Carol Ann Robb, Kathleen Bartlett, Judges.


                                             JUDGMENT:
                                               Affirmed


Atty. John Gamble, Columbiana County Prosecutor’s Office, Columbiana County
Courthouse, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee, and

Atty. C. Williams, Williams & Associates Co., LPA, Highland Corner, 1376 East State
Street, Salem, Ohio 44460, and Atty. Janet Stich, 1799 Akron Peninsula Road, Akron,
Ohio 44313, for Defendant-Appellant.
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                                Dated: December 6, 2018


Donofrio, J.

       {¶1}    Defendant-appellant, Stephen Bauman, appeals from a Columbiana
County Common Pleas Court judgment convicting him of felonious assault and failure to
remain at the scene of an accident, following a bench trial.
       {¶2}    On August 2, 2015, appellant was driving his pickup truck south on
Ellsworth Avenue in Salem. At the same time, Curtis Masters was riding his bicycle
south on Ellsworth Avenue. According to Masters, appellant passed him and almost hit
him with the right mirror of his truck. As appellant passed Masters, the two men yelled
at each other.    As he passed Masters, appellant moved to the right and stopped
abruptly. Masters swerved to the left and collided with appellant’s truck bed. Masters
flipped over the truck’s bed and onto the street.
       {¶3}    Masters got up and another heated exchange occurred between the two
men.    During the argument, Masters punched appellant.           A witness phoned 911.
Appellant soon drove away. He pulled into a nearby parking lot. An officer pulled into
the lot after noticing appellant’s truck. When the officer pulled in, appellant left the lot.
Another officer followed him out of the parking lot and initiated a traffic stop. The officer
did not file any charges during the stop.
       {¶4}    On August 19, 2015, a Columbiana County Grand Jury indicted appellant
on one count of felonious assault, a second-degree felony in violation of R.C.
2903.11(A)(2), and one count of failure to remain at the scene of an accident, a first-
degree misdemeanor in violation of R.C. 4549.02(A). The matter proceeded to a bench
trial. The court found appellant guilty as charged. The court later sentenced appellant
to two years in prison for the felonious assault and ten days in jail for leaving the scene
of an accident, to be served concurrently.
       {¶5}    Appellant filed a motion for a new trial citing newly discovered witnesses
and evidence. He then filed a notice of appeal. On our limited remand, the trial court
denied appellant’s motion for a new trial. Appellant then filed an amended notice of
appeal on December 13, 2017. He now raises seven assignments of error.




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      {¶6}    We will address appellant’s assignments of error out of order for ease of
discussion.
      {¶7}    Appellant’s third assignment of error states:

              THE TRIAL COURT’S DENIAL OF MOTION FOR ACQUITTAL
      VIOLATED APPELLANT’S DUE PROCESS RIGHTS BECAUSE THE
      EVIDENCE IS INSUFFICIENT TO SUPPORT A GUILTY VERDICT FOR
      FELONIOUS ASSAULT AND FAILURE TO STOP AFTER ACCIDENT.

      {¶8}     Appellant argues that evidence presented at trial was insufficient to
prove the elements of the offenses beyond a reasonable doubt. He alleges that the trial
court based its decision on evidence that was not credible.
      {¶9}     An appellate court reviews a denial of a motion to acquit under Crim.R.
29 using the same standard it uses to review a sufficiency of the evidence claim. State
v. Rhodes, 7th Dist. No. 99-BA-62, 2002-Ohio-1572, at ¶ 9; State v. Carter, 72 Ohio
St.3d 545, 553, 651 N.E.2d 965 (1995).
      {¶10} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d
668 (1997). In essence, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to
sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, 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. Smith, 80 Ohio St.3d at 113.
      {¶11} The court convicted appellant of felonious assault in violation of R.C.
2903.11(A)(2), which provides that no person shall knowingly cause or attempt to cause
physical harm to another or by means of a deadly weapon or dangerous ordnance.”
      {¶12} The court also convicted appellant of failure to remain at the scene of an
accident in violation of R.C. 4549.02(A). That statute provides that the operator of a
motor vehicle involved in an accident on a public road must stop and remain at the
scene until he gives his name, address, vehicle registration number to any person



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injured in the accident, the occupants of the damaged vehicle, and the police officer at
the scene. R.C. 4549.02(A)(1). It further provides that the operator shall remain at the
scene of the accident until a police officer arrives. R.C. 4549.02(A)(2).
       {¶13} We must examine the state’s evidence to determine if it presented
evidence going to each element of both offenses.
       {¶14} David Bedell testified first.   Bedell lives on Ellsworth Avenue and was
outside when the accident occurred. (Tr. 30). He heard loud voices coming from the
road. (Tr. 30). He then saw a pickup truck, about 100 yards away, stop suddenly with
no signs of slowing down. (Tr. 30-31). He described the stop as so sudden that the
front end of the truck dipped and the back end went up into the air. (Tr. 31). He noticed
that a bicycle rider was behind the truck. (Tr. 30).        He saw the rider go over his
handlebars and collide with the truck, then roll into the road. (Tr. 30-31). Bedell then
called 911, told them what he saw, and gave them a description of the truck. (Tr. 34).
       {¶15}   Following the accident, Bedell witnessed the altercation between
appellant and Masters. (Tr. 33). He heard Masters tell appellant that he had a right to
be there. (Tr. 33). He saw hands moving back and forth between the men, and it
looked to him as if someone was punching somebody. (Tr. 33). He relayed to the
dispatcher the direction the truck traveled after the accident. (Tr. 34). Bedell testified
there was no doubt in his mind that the pickup truck was responsible for the accident.
(Tr. 33).
       {¶16}   Masters testified next. Masters testified that on the day of the accident,
he was finishing a long training ride of more than 70 miles in preparation for an
upcoming competition. (Tr. 67). He was traveling about 25 miles per hour on Ellsworth
Avenue on his way to his home in Salem. (Tr. 68-70). He had his head down in an
aerodynamic position. (Tr. 69). Masters stated that he noticed a mirror of a pickup
truck narrowly miss his left arm. (Tr. 73). He said the driver of the truck had his window
down and was screaming to the point where spit was coming out of his mouth. (Tr. 73).
       {¶17}   Masters then yelled back at the driver, at which point the driver veered
his truck into Masters narrowly missing his front tire by about an inch. (Tr. 75-76). He
stated that he tried to veer left, but did not make it, striking the rear side of appellant’s
truck. (Tr. 77). Masters described the event as happening very quickly. (Tr. 76-77). He



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stated that appellant intentionally came into his path and stopped. (Tr. 111). Masters
explained that he struck the rear of the truck to the right of the license plate. (Tr. 111).
After the collision, Masters stated he landed in the center lane. (Tr. 97).
       {¶18} Masters testified that even after the accident, appellant continued to yell at
him. (Tr. 80). He stated that he was “beside himself,” when he noticed appellant
attempting to open his door. (Tr. 80). He went up to appellant’s door. (Tr. 82). He
claimed he had his hand on appellant’s door, while he told appellant that he had a right
to be there. (Tr. 82). At this point, Masters claimed that appellant began to raise his
hands, so Masters punched appellant in the face.          (Tr. 82-83).   He stated that he
punched appellant because appellant was aggressive towards him and angry.               (Tr.
101). Masters said appellant again raised his hands, so he punched him again. (Tr. 82-
83). Masters told appellant he was going to call the police, at which point appellant
drove away. (Tr. 83).
       {¶19} Masters testified that because of the accident he had a lot of bruising, was
pretty “beat up,” and had a headache. (Tr. 85). He stated that his shoulder still gets
sore because of the accident. (Tr. 88). Masters stated that the accident also cracked
the carbon fiber on his triathlon bike frame beyond repair, which cost more than $5,000
to replace. (Tr. 85-87). Masters testified that he competed in an Iron Man competition a
few weeks after the accident, which included a one-and-a-half mile swim, 56-mile bike
ride, and a half marathon. (Tr. 87-88). He felt the effects of the crash during the
competition. (Tr. 88).
       {¶20}   Salem Patrolman Steven LaRosa testified next. In conjunction with his
testimony, the court admitted the 911 call regarding the incident. Patrolman LaRosa
responded to the scene of the accident. (Tr. 117). Dispatch informed him that the
suspect’s vehicle was a red truck. (Tr. 118). He noticed a red truck in the community
center parking lot as he drove by, but still went to the scene of the accident to make
sure there were no injuries. (Tr. 119). He relayed the fact that he saw a red truck in the
community center parking lot over the radio. (Tr. 120).
       {¶21}   Salem Police Sergeant Daniel Green testified next. Sgt. Green heard
about the accident and the vehicle description over his police radio. (Tr. 146). He
indicated that he would check the community center parking lot. (Tr. 149-150). When



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he entered the parking lot, he observed a truck matching the description exiting the lot.
(Tr. 152-153). He recognized appellant. (Tr. 151). He observed appellant travel onto
Ellsworth Avenue and conveyed this information on his radio. (Tr. 154).
       {¶22}    The next witness was Salem Police Officer Richard Miller. Officer Miller
heard dispatch advise that there had been a crash involving a vehicle and a bicycle.
(Tr. 172-173). Officer Miller heard Sgt. Green advise that a truck matching the correct
description was coming out of the community center lot, so Officer Miller got behind it
and initiated a traffic stop. (Tr. 176). Officer Miller stated there was no issue with the
traffic stop. (Tr. 184).
       {¶23}    John Shaw was the state’s final witness. Shaw was heading northbound
on Ellsworth Avenue at the time of the accident. (Tr. 191). He noticed a bicycle about
500 yards away in the southbound lane. (Tr. 192). The bicycle was to the furthest right
side of the rode. (Tr. 192). He noticed a red truck following the bicycle. (Tr. 193). He
observed that the red truck did not attempt to get around the bicycle. (Tr. 193). He
veered to the right in order to allow the red truck room to pass the bicycle, but the red
truck still did not move. (Tr. 193). Shaw testified he thought the truck’s mirror was
going to hit the bicycle. (Tr. 194). He pulled over to the side of the road and watched
the truck and bicycle in his rearview mirror. (Tr. 195). He stated he saw the truck stop
abruptly and the bicycle flip into the bed of the truck. (Tr. 195). His initial thought was
that the action was a “road rage” type “brake check.” (Tr. 196).
       {¶24}    Shaw testified he then saw the bicyclist get up and approach the
passenger window. (Tr. 198). He saw what he believed to be arguing, then the bicyclist
flinch as if to avoid something.    (Tr. 198).   After the bicyclist flinched, he saw the
bicyclist throw a couple of punches. (Tr. 199). After the truck left the scene, Shaw went
and checked on the cyclist. (Tr. 199). He observed that the bicyclist was a little bit
shaken and had bumps and scratches on his knees. (Tr. 200). Shaw stated that he
had no doubt that the driver of the truck intentionally slammed on his brakes so that the
bicyclist would slam into him. (Tr. 201).
       {¶25} Appellant argues that the state did not prove that he acted “knowingly.” “A
person acts knowingly, regardless of purpose, when the person is aware that the




Case No. 17 CO 0016
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person's conduct will probably cause a certain result or will probably be of a certain
nature.” R.C. 2901.22(B).
       {¶26} When examining the evidence in a light most favorable to the prosecution,
the testimony of the witnesses was sufficient to establish that appellant acted knowingly.
Appellant slammed on his brakes in the middle of the road, in a manner described by
Shaw as a road rage type brake check. In addition, Masters testified that appellant
intentionally came into his path and stopped.
       {¶27}   R.C. 2901.01(A)(3) defines physical harm as “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.” Masters testified that he
had bruising, a headache, and lingering shoulder pain. Therefore, the evidence was
sufficient to establish that the appellant caused physical harm to the victim.
       {¶28}   Additionally, a vehicle is a deadly weapon when the offender uses it in a
manner likely to produce death or grave bodily harm. State v. Bandy, 7th Dist. No. 10-
MA-74 at ¶ 22, citing State v. Tortarella, 11th Dist. No.2002-L-147, 2004-Ohio-1175, ¶
64. Appellant drove his vehicle into the path of the victim and abruptly slammed on his
brakes thereby using it as a deadly weapon.
       {¶29}   As to failure to remain at the scene of an accident, the evidence clearly
demonstrated that appellant had knowledge of the collision. He stopped and argued
with Masters after the collision then he drove away.
       {¶30} In sum, there was sufficient evidence to support appellant’s convictions.
       {¶31} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
       {¶32} Appellant’s first assignment of error states:

               THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY
       OF FELONIOUS ASSAULT AND FAILURE TO STOP AFTER ACCIDENT
       BECAUSE SUCH FINDINGS ARE AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE.

       {¶33} Here appellant argues the weight of the evidence did not support his
convictions. He contends that his actions on the road were not intentional. Appellant




Case No. 17 CO 0016
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claims the reason he stopped suddenly in the middle of the road was confusion caused
by Masters yelling.
       {¶34} According to his version of events, appellant did not notice Masters when
he passed him. He testified that Masters maneuvered his bike into the pathway of his
truck. He claimed that after safely passing Masters, he heard yelling so he stopped. He
claimed that at this point, Masters drove his bike into the back of his truck.
       {¶35}    Appellant asserts that after the accident, Masters walked up to his truck,
blocked him from exiting the vehicle, and punched him in the face twice. He claims that
he left the scene of the accident as a direct result of the altercation, in fear of his safety.
       {¶36}    In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences and determine 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. Thompkins, 78 Ohio St.3d at 387.
“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.’” Id.
(Emphasis sic.) In making its determination, a reviewing court is not required to view
the evidence in a light most favorable to the prosecution but may consider and weigh all
of the evidence produced at trial. Id. at 390.
       {¶37} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the witnesses'
credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse,
7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio St.3d 195,
205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus. Thus, “[w]hen there exist two fairly reasonable
views of the evidence or two conflicting versions of events, neither of which is
unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th
Dist. No. 99-CA-149, 2002-Ohio-1152.



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       {¶38}   In conducting a manifest weight of the evidence review, we must
consider appellant’s evidence in his defense in addition to the state’s evidence set out
above.
       {¶39}   Appellant testified that on the day in question he was driving home after
a bike ride. (Tr. 218). He stated that he successfully went around Masters, at which
point Masters flew into a rage. (Tr. 220). He claimed that the reason he did not attempt
to pass Masters by going around him when Shaw gave him room was that he did not
think traffic rules allowed you to cross over a double-yellow line.         (Tr. 244-245).
Appellant said he had a verbal exchange with Masters as he went past. (Tr. 221). He
said that while his right bumper was close to the bicycle, Masters swerved into him. (Tr.
221). He claimed there was still enough room for them not to hit. (Tr. 221). According
to appellant, after he drove 25 yards further down the road he heard screaming. (Tr.
222). He stated that because of the screaming he abruptly stopped in order to make
sure that he did not hit the bicycle. (Tr. 222). He stated at this point Masters was
screaming like a maniac, and hit the back of his truck, catapulting into the back of the
truck. (Tr. 222). He said Masters got up, came over to the truck still yelling, and hit him
twice. (Tr. 223). Appellant opined Masters was consumed with road rage. (Tr. 265).
       {¶40}   Appellant stated that he drove to the community center and sat in the
parking lot. He said he did not leave the scene to avoid detection by police. (Tr. 231).
He acknowledged that he said on video that the reason he stopped was that he thought
maybe he hit the bicyclist. (Tr. 232). He claimed to have not seen the police officer in
the community center parking lot, otherwise he would have stopped. (Tr. 250). He
stated that the reason he sat in the parking lot was to wait for the police to come. (Tr.
251). He admitted that he saw two police officers going south. (Tr. 253). He said he
pulled out and headed south in order for the police, who went that direction, to see him.
(Tr. 254).
       {¶41}   As to the felonious assault conviction, appellant takes issue with the fact
that the court found the state’s witnesses more convincing than him. He points to
inconsistencies in describing the accident. He also notes that Bedell was 100 yards
away from the scene, and Shaw was 70 yards away. But reliability of witness testimony
is an issue left to the trier of fact, whose opportunity to assess the witnesses is superior



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to that of the reviewing court. State v. Caplan, 7th Dist. No. 03-MA-91, 2004-Ohio-
4990, ¶ 15, citing State v. Bezak, 9th Dist. No. 18533, 1998 WL 103336 (Feb. 18, 1998)
(citation omitted).
       {¶42}     When examining the evidence, we cannot conclude that the trial court
lost its way in determining that some witnesses were more credible than others. In fact,
the court explained its conclusion regarding testimony: “To believe [appellant] that he
was well clear of Mr. Masters before stopping suddenly, I would also have to believe
that Mr. Masters continued south on Ellsworth and intentionally crashed his expensive
carbon fiber bicycle into the rear tailgate and bumper of the truck, thereby exposing
himself to serious personal injury.”
       {¶43} The court also viewed the act of passing Masters in the manner described
by Masters and witnesses as an attempt to crowd or bully, which in itself could be an act
of aggression.        In addition, Shaw testified that he was so troubled by how close
appellant was to Masters, that he actually pulled over to the side of the road. The court
believed Masters’ and Shaw’s testimony regarding who the aggressor was in the
situation. When the reviewing court examines a trial court decision, and “[w]hen there
exist two fairly reasonable views of the evidence or two conflicting versions of events,
neither of which is unbelievable, it is not our province to choose which one we believe.”
State v. Anderson, 7th Dist. No. 14-BE-0036, 2016-Ohio-4800, ¶ 19, quoting Dyke,
2002-Ohio-1152.
       {¶44}     Appellant additionally contends that it was error for the court to conclude
that his vehicle was a deadly weapon. This court has held that:

               When an automobile is used in a manner likely to produce death or
       grave bodily harm, it can be classified as a deadly weapon under R.C.
       2923.11. State v. Tortarella, 11th Dist. No.2002-L-147, 2004-Ohio-1175, at
       ¶ 64; State v. Allsup, 3d Dist. Nos. 6-10-06, 6-10-07, 2011-Ohio-405, at ¶
       23. “When determining whether an automobile is a deadly weapon, a court
       should consider the intent of the user, the nature of the weapon, the
       manner of its use, the actions of the user and the capability of the
       instrument to inflict death or serious bodily injury.” State v. Evans, 10th
       Dist. No. 01AP-112, 2002-Ohio-3322, ¶ 22 citing State v. Gimenez (Sept.


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      4, 1997), 8th Dist. No. 71190, State v. Upham (May 12, 1997), 12th Dist.
      No. CA96-08-157.

Bandy, 2011-Ohio-4332, ¶ 22.
      {¶45} In this case, the trial court found that appellant purposefully stopped
suddenly, knowing that physical harm to the victim was a probable result. Appellant’s
action of purposely, suddenly stopping his car directly in front of someone on a bicycle
caused appellant to use his car as a deadly weapon.
      {¶46} As to the failure to remain at the scene of the accident conviction, the
evidence was undisputed that a collision occurred between appellant’s truck and
Masters’ bicycle. The evidence was further undisputed that appellant left the scene of
the accident and drove to a community center parking lot. Appellant testified that he left
the scene because Masters assaulted him. But appellant chose to drive away from the
scene without alerting police of the accident.      Moreover, an officer pulled into the
community center parking lot after noticing appellant’s truck. When the officer pulled
into the parking lot, appellant drove out. Another officer followed appellant out of the
parking lot and initiated a traffic stop. This evidence demonstrated that the police had to
track appellant down to question him about the accident because appellant failed to
remain at the scene or to contact the police.        Thus, the weight of the evidence
supported appellant’s conviction for failure to remain at the scene of an accident.
       {¶47}   In sum, appellant’s convictions are not against the manifest weight of the
evidence.
       {¶48}   Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶49}   Appellant’s second assignment of error states:

               APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE
       TRIAL    COURT       DENIED      APPELLANTS        CROSS-EXAMINATION
       OFFICER REGARDING VIDEO AND IN OVERRULING DEFENSE
       OBJECTIONS.




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      {¶50}    During defense counsel’s cross-examination of Patrolman LaRosa,
counsel asked the patrolman, “[appellant] admitted to you from the beginning that he
purposely put on his brakes; correct?” (Tr. 135). The prosecutor objected arguing the
defense was attempting to elicit testimony about appellant’s statements. (Tr. 136). The
trial court sustained the objection, ruling that defense counsel could not attempt to bring
appellant’s statement in through the patrolman because it was hearsay. (Tr. 136).
       {¶51}   Appellant argues the court denied him the opportunity to confront a
witness and erred in excluding this testimony.
       {¶52} The admission or exclusion of evidence is within the trial court's broad
discretion and this court will not reverse its decision absent an abuse of that discretion.
State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (1996). Abuse of discretion
connotes more than an error of law or judgment; it implies that the trial court's judgment
was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151,
157, 404 N.E .2d 144 (1980).
       {¶53} Hearsay is an out-of-court statement, offered in evidence to prove the
truth of the matter asserted. Evid.R. 801(C). Hearsay is generally not admissible.
Evid.R. 802.
       {¶54}   The trial court did not abuse its discretion by ruling that the officer’s
testimony would be hearsay. Defense counsel asked Patrolman LaRosa during cross-
examination, “[Appellant] admitted to you from the beginning that he purposely put on
his brakes; correct?” (Tr. 135). Patrolman LaRosa responded, “He did.” Defense
counsel then asked, “Why did he?” at which point the prosecution objected. (Tr. 136).
The court sustained the objection because the statement was hearsay.
       {¶55}   Appellant argues that limiting the scope of cross-examination denied him
his confrontation clause rights. But this court has observed that a criminal defendant's
right to cross-examine a witness is not unlimited. State v. Williams, 7th Dist. No. 09-
MA-11, 2010-Ohio-3279, ¶ 18, quoting State v. Freeman, 7th Dist. No. 07-JE-5, 2008-
Ohio-2925.     In addition, “the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15,




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20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985).          Hearsay is not admissible evidence.
Therefore, the court properly limited the scope of the cross-examination.
       {¶56}    Moreover, appellant testified as to what he told the officers during the
stop, and the court allowed him to use the audio and video from the stop to refresh his
memory. Thus, the evidence was still admitted at trial.
       {¶57}    Appellant also argues that the court should have allowed the statements
as hearsay exceptions pursuant to Evid.R. 803(1), (3), or (5).
       {¶58}    Evid.R. 803(1) is known as the present sense exception. Underlying the
present sense exception is the principal that statements of perceptions describing the
event and in close temporal proximity to the event bear a high degree of
trustworthiness. State v. Shaw, 7th Dist. No. 12-MA-95, 2013-Ohio-5292, ¶ 24, quoting
Cox v. Oliver Machinery Co., 41 Ohio App.3d 28, 35, 534 N.E.2d 855 (12th Dist.1987).
       {¶59}    The statements in this case were not uttered while perceiving the
accident or directly thereafter. The statements were made during the traffic stop, after
appellant left the scene of the accident, sat in the community center parking lot, and
drove away. Thus, the Evid.R. 803(1) exception does not apply.
       {¶60}    Evid.R. 801(3) allows a statement of the declarant's then existing state of
mind, emotion, sensation, or physical condition. Seeing as the police were questioning
appellant regarding a previous event, this exception did not apply.
       {¶61}    Evid.R. 803(5) permits admission of “a memorandum or record
concerning a matter about which a witness once had knowledge but now has
insufficient recollection to enable him to testify fully and accurately, shown by the
testimony of the witness to have been made or adopted when the matter was fresh in
his memory and to reflect that knowledge correctly.” Evid.R. 803(5). As noted above,
appellant did use the video to refresh his recollection during cross-examination. Thus,
the court did use Evid.R. 803(5) for its intended purpose during appellant’s testimony.
       {¶62}    In sum, the trial court did not abuse its discretion in disallowing
Patrolman LaRosa from testifying as to what appellant told him during the traffic stop.
       {¶63}    Accordingly, appellant’s second assignment of error is without merit and
is overruled.
       {¶64}    Appellant’s fourth assignment of error states:



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               THE TRIAL COURT ERRED IN DENYING APPELLANT’S
       MOTION FOR A NEW TRIAL.

       {¶65}    Appellant argues that he discovered new evidence after the trial that
warranted a new trial. At the hearing on the motion for a new trial, Glen Cimaglia
testified that Masters told him that he had actually chased down appellant.
       {¶66}    Appellant claims that he also learned during the motion for a new trial
hearing that an “app” called “Strava” existed, on which Masters made posts relating to
the accident. Appellant attached Masters’ Strava posts from the time of the accident to
his new trial motion. The posts showed that the day of the accident Masters made a
post entitled “Crashes and punches” that showed the route he traveled, as well as the
time and distance of the ride. The posts also showed that two days after the accident,
Masters went on a 38.8-kilometer bike ride. Additionally, appellant contends there were
“hundreds” of posts on Facebook regarding the accident. Appellant contends that the
new testimony and evidence would have convinced the court to place less weight on
Masters’ testimony or at least would have been a mitigating factor in sentencing.
       {¶67}    Ohio uses a six-part test to determine whether the court should grant a
motion for a new trial:

               To warrant the granting of a motion for a new trial in a criminal
       case, based on the ground of newly discovered evidence, it must be
       shown that the new evidence (1) discloses a strong probability that it will
       change the result if a new trial is granted, (2) has been discovered since
       the trial, (3) is such as could not in the exercise of due diligence have
       been discovered before the trial, (4) is material to the issues, (5) is not
       merely cumulative to former evidence, and (6) does not merely impeach or
       contradict the former evidence.

       {¶68} State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. We
review the denial of a motion for new trial on the abuse of discretion standard. State v.
Williams, 43 Ohio St.2d 88, 330 N.E. 2d 891 (1975), paragraph two of the syllabus.




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       {¶69} Cimaglia’s testimony does not carry with it the strong probability that it
would change the result of the trial. As the trial court stated at the hearing on the
motion for a new trial, even if the testimony were true, and the victim did indeed chase
appellant, it would not change the action appellant took to “brake check” the victim. The
due diligence requirement similarly bars the social media evidence. There apparently
were “hundreds” of posts regarding the incident on social media. Although Strava may
be a niche app for runners and cyclists, Facebook certainly is not. The Strava posts
attached to the motion do not show anything material to the defense. As previously
noted, the graveness of the victim’s injury holds no bearing on appellant’s conviction.
Appellant did not attach any Facebook posts to the motion, so this court does not have
the ability to know whether they would be material to the defense, or even if they exist at
all. The appellate court is not permitted to add matter to the record that was not part of
the trial court proceedings. State v. Prieto, 7th Dist. No. 07-MA-4, 2007-Ohio-7204, ¶
36, citing State v. Hill, 90 Ohio St.3d 571, 573, 740 N.E.2d 282 (2001).
       {¶70}    Appellant found two new pieces of evidence, neither of which meet the
requirements for a new trial, therefore the trial court’s denial of the motion was not an
abuse of discretion.
       {¶71}    Accordingly, appellant’s fourth assignment of error is without merit and is
overruled.
       {¶72}    Appellant’s fifth assignment of error states:

                APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO
       INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶73}    Here appellant argues that not finding the evidence presented with the
motion for a new trial fell below the standard of reasonable representation and resulted
in prejudice.
       {¶74} To prove an allegation of ineffective assistance of counsel, the appellant
must satisfy a two-prong test.          First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the



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syllabus. Second, appellant must demonstrate that he was prejudiced by counsel's
performance.       Id.   To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
        {¶75} Appellant bears the burden of proof on the issue of counsel's
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.
        {¶76} Regardless of if the social media posts did in fact exist, or if they provided
evidence to bolster appellant’s defense, the failure to investigate is not something that
this court can infer from a silent record about how the pretrial investigation took place.
State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E. 3d 1096, ¶ 247,
citing State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E. 2d 263. In the
case at bar, we cannot determine from the record that appellant’s trial counsel failed to
conduct an adequate pretrial investigation.
        {¶77} Moreover, as discussed above, even if the social media posts existed and
even considering the “Strava evidence,” the evidence presented at trial would still
demonstrate that appellant knowingly “brake checked” Masters and that appellant left
the scene of the accident. Thus, appellant cannot show the required prejudice.
        {¶78}    Accordingly, appellant’s fifth assignment of error is without merit and is
overruled.
        {¶79}    Appellant’s sixth assignment of error states:

                APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE
        CUMULATIVE EFFECT OF THE ERRORS SET FORTH HEREIN.

        {¶80} Appellant argues that the combination of the errors he alleged resulted in
a denial of his right to a fair trial.
        {¶81} Cumulative error provides that it is a cause for reversal when the
cumulative effect of errors in a trial deprives a defendant of a fair trial even though each
error alone does not individually constitute a cause for reversal. State v. DeMarco, 31
Ohio St.3d 191, 196-197, 509 N.E.2d 1256 (1987). When this court finds no error, the




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doctrine does not apply. State v. Lyons, 7th Dist. No. 16-JE-0008, 2017-Ohio-4385, ¶
46.
       {¶82} None of appellant’s assignments of error have merit.           Therefore, the
doctrine of cumulative error does not apply.
       {¶83} Accordingly, appellant’s sixth assignment of error is without merit and is
overruled.
       {¶84} Appellant’s seventh assignment of error states:

               THE TRIAL COURT ERRED IN THE IMPOSITION OF THE
       SENTENCE IMPOSED UPON APPELLANT.

       {¶85} Appellant argues that his sentence was not proper because the trial court
relied on aggravating factors that the evidence did not support.           He argues that
community control was an appropriate sentence. He does not take issue with his ten-
day sentence for failure to remain at the scene of an accident.
       {¶86}   When reviewing a felony sentence, an appellate court must uphold the
sentence unless the evidence clearly and convincingly does not support the trial court’s
findings under the applicable sentencing statutes or the sentence is otherwise contrary
to law. State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E. 3d 1231, ¶ 1.
Although the trial court must consider the relevant statutory factors, it is not required to
discuss those considerations on the record. State v. McCourt, 7th Dist. No. 16-MA-
0144, 2017-Ohio-9371, ¶ 9, citing State v. Pyles, 7th Dist. No. 13-BE-11, 2014-Ohio-
4146, ¶ 6.
       {¶87}   The court sentenced appellant to two years in prison for second-degree
felonious assault. A prison sentence for a second-degree felony is not mandatory, but
presumed. R.C. 2929.13(D)(1). The possible prison sentences for a second-degree
felony are two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2). Thus,
appellant’s prison sentence was within the statutory range.
       {¶88}   A court may sentence an offender to community control or a combination
of community control if it makes the finding that the factors listed in R.C. 2929.12
indicate a lesser likelihood of recidivism. R.C. 2929.13(D)(2)(a). The court must also
find that community control would not demean the seriousness of the offense by finding



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one or more of the R.C. 2929.12 factors that indicate the conduct was less serious than
the conduct normally constituting the offense. R.C. 2929.13(D)(2)(b).
       {¶89}   Here the court found that the R.C. 2929.12 factors indicated a lesser
likelihood of recidivism. The court noted that appellant does not have a criminal history
and had led a law-abiding life prior to this offense.
       {¶90}   The court could not satisfy the second prong however, and found that
appellant’s conduct was more serious than that normally constituting the offense.
Notably, the court found that appellant used his vehicle as a deadly weapon, the victim
did not facilitate or induce the offense, and the victim suffered both physical injury and
economic loss.
       {¶91}   This court has held that Marcum does not permit appellate courts to
independently weigh the sentencing factors in R.C. 2929.12. State v. Ward, 7th Dist.
No. 16-BE-0077, 2017-Ohio-4381, ¶ 6, citing State v. Davis, 7th Dist. No. 15-BE-0034,
2016-Ohio-7319 (citations omitted). In addition, “reversal or modification of a sentence
in the wake of Marcum, ‘applies to situations in which not one sentencing factor
supports a stated prison term or the trial court erroneously relied on factors that did not
exist.’” Id. at ¶ 6, citing Davis, 7th Dist. No. 15-BE-0034 at ¶ 5, quoting State v. Ongert,
8th Dist. No. 103208, 2016-Ohio-1543, ¶ 14. All that is required is that an appellate
court can determine from the record that the trial court considered the relevant factors.
State v. Pyles, 7th Dist. No. 13-BE-11, 2014-Ohio-4146, ¶ 6, citing State v. Scott, 3d
Dist. No. 6-07-17, 2008-Ohio-86.
       {¶92}   The court found that using a vehicle as a deadly weapon made the
conduct more serious. R.C. 2929.12(B) permits a court to examine any factors it deems
relevant in coming to a sentencing decision.
       {¶93}   R.C. 2929.12(B)(2) states serious physical, psychological, or economic
harm can be an aggravating factor. Masters testified that the accident caused bruising
on his legs, knees, and chest.      He also experienced soreness in his shoulder and
headache. Additionally, the bicycle ruined in the accident was worth $3,800. Masters
spent $5,000 to replace the bicycle with a comparable model.
       {¶94}   In terms of mitigating factors, the court found that the victim did not
facilitate or induce the offense. The court found Masters’ testimony convincing at trial,



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which established that appellant began the altercation by “buzzing” Masters and yelling
and screaming out of his truck window.
       {¶95}    Therefore, the record supports the trial court’s sentence.
       {¶96}    Accordingly, appellant’s seventh assignment of error is without merit and
is overruled.
       {¶97}    For the reasons stated above, the trial court’s judgment is hereby
affirmed.




Robb, P. J., concurs

Bartlett, J., concurs




Case No. 17 CO 0016
[Cite as State v. Bauman, 2018-Ohio-4913.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellant.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
