[Cite as State v. Addison, 2012-Ohio-260.]



                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96514



                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                 DEANGELO ADDISON
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                              VACATED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-539828

        BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                   January 26, 2012
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ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Scott Zarzycki
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



EILEEN A. GALLAGHER, J.:

       {¶ 1} Deangelo Addison appeals his conviction for two counts of felonious

assault entered in the Cuyahoga County Common Pleas Court. Addison argues that his

convictions were supported by insufficient evidence, were against the manifest weight of

the evidence, that he was denied his constitutional right to confront his accuser, and that

the State acted improperly when it impeached its own witnesses. Finding merit to this

appeal, we reverse the judgment of the trial court, modify Addison’s convictions, vacate

his sentence, and remand for resentencing as to the modified convictions.

       {¶ 2} On July 7, 2010, Justin Brown went out with his brother, Anthony Brown
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(“Anthony”), and his friend, William Davis (“William”). The three males arrived at the

Tonight’s II Bar located at 16000 Libby Road in Maple Heights, Ohio. The three men

were at the bar for approximately one half hour and then walked outside to smoke

cigarettes.   Justin testified that as he was outside, he saw his brother Anthony and

William get into a fight with Deshawn Lee, a man with whom Anthony had problems

with in the past. Deshawn testified that as Anthony bumped him as he walked into the

bar, he then later started a fight with Anthony in the parking lot. Specifically, Deshawn

testified that he punched Anthony, then William, and then returned to hitting Anthony in

the head. Deshawn admitted that his punches knocked Anthony to the ground.

       {¶ 3} While this first fight occurred, an unknown patron of Tonight’s II walked

inside the bar and said that a fight was going on outside. Addison and his friends,

Brandon Lyons and Jay-William, walked outside to see the fight. When they walked

outside, a second fight erupted almost immediately.

       {¶ 4} Deshawn’s friend, George Strickland, was also present for the fight and he

testified that he saw Deshawn swing at two men, hitting them both. Strickland testified

that he saw Deshawn hit William, knocking him unconscious, which caused William to

hit his head against the door and then fall onto the ground. According to Strickland, he

pulled Deshawn off Anthony and then he, Deshawn and a third friend got into

Strickland’s car and drove away.

       {¶ 5} Both Deshawn and Strickland testified that as they drove off, Justin,
                                           4

Anthony, and William were standing near the edge of the parking lot. Deshawn admitted

that because the three males were acting aggressively, he pulled out a handgun and

waived it at the three while driving away.        Deshawn and Strickland testified that

Deshawn had stored the gun in Strickland’s glove box because bar security conducts pat

downs upon entry and would have found it had Deshawn tried to bring the weapon into

the bar.

       {¶ 6} Justin Brown testified that Addison walked up to William and acted like he

was going to shake William’s hand.        Brown testified that instead, Addison struck

William on the left side of his head with an object. Justin stated that Addison also struck

Anthony in the head with this same object. Justin was not able to identify the object used

by Addison but stated that both William and Anthony fled the area after being hit. Justin

fled towards the same area as Anthony did, eventually meeting up with his brother in a

nearby parking lot. Justin testified that Anthony was bleeding from his head. Justin

called 911, but Anthony declined medical treatment at the hospital and never appeared in

court to testify against Addison.

       {¶ 7} Addison denied Justin’s version of the events. He testified that as soon as

he, Brandon, and Jay-William walked outside, they were mistakenly identified as being

friends with Deshawn, who admittedly started the first fight. Addison testified that

Anthony swung at him and at Brandon and that there was a crowd of seven to eight

individuals fighting. Addison testified that he ducked Anthony’s punch but swung back,
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hitting him in the head. Addison further testified that he may have hit another person but

that it was difficult to tell, as there were a lot of people fighting outside and it all

happened very quickly.

        {¶ 8} Addison testified that when he heard that police officers were coming, he

walked back into the bar, got patted-down for weapons, finished his drink, and then

returned outside where he saw Brandon and also observed a group of males running down

Broadway, away from the bar. Addison, Brandon, and Jay-William left the bar shortly

thereafter.

        {¶ 9} Brandon corroborated Addison’s version of the events and stated that he did

not see Addison hit anyone during the fight. He testified that he saw Addison tussling

and grabbing with someone but never did he see Addison hit either Anthony or William.

None of the testifying witnesses stated that they saw Addison with a gun at any point in

time.

        {¶ 10} William Davis went missing and his body was not located until July 16,

2010, when it was discovered by Maple Heights police officers in an advanced state of

decomposition. The Cuyahoga County Coroner did not rule William’s death a homicide

because the Coroner could not state, to a reasonable degree of scientific certainty, that

Davis’s injuries were inflicted by another person.     Deputy Coroner Dr. Dan Galita

testified that the body was found at the bottom of a rocky embankment in a ravine, to

which the victim could, theoretically, have fallen 20 to 30 feet.       Additionally, the
                                            6

Coroner could not specifically state the cause of death because there were three

possibilities: (1) blunt force trauma to the back of the head behind the left ear; (2) acute

alcohol intoxication as William’s blood-alcohol level was .27; and (3) possible drowning

due to the existence of sand and water in his lungs, indicating that he had breathed in the

debris before he died. Lastly, the Coroner’s report did not identify the cause of the

blunt-force trauma, and listed it as “violence of undetermined origin.”

       {¶ 11} During the course of their investigation, Maple Heights police officers

interviewed the parties involved in both fights as well as William Davis’s family. Their

investigation revealed inconsistent statements, with one witness stating that Addison

stated in a telephone call that he had pistol-whipped William and others stating that

Addison denied hitting anyone with a weapon.

       {¶ 12} On August 11, 2010, a Cuyahoga County Grand Jury indicted Addison with

two counts of murder, one count of involuntary manslaughter, four counts of felonious

assault, and two counts of having a weapon while under disability. Each count contained

both one- and three-year firearm specifications. Counts 6 and 7 related to Addison’s

alleged actions towards Anthony Brown while the remaining counts related to victim

William Davis. Prior to commencement of trial, Addison executed a voluntary waiver of

a jury trial and the State submitted a notice of dismissal of Count 1, murder.

       {¶ 13} Trial commenced on January 14, 2011, and the State presented the

following witnesses: Justin Brown, Deshawn Lee, George Strickland, Erica Walker, Dan
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Galita, M.D., Brandon Lyons, Agent Daniel Winterich from the Bureau of Criminal

Identification and Investigation, Maple Heights Police Officer Andrew Sperie, Selvin

Cunningham, and Maple Heights Detective Jeffrey Canter. Addison testified as the

defense’s sole witness. On January 19, 2011, the trial court found Addison not guilty of

all firearm specifications and not guilty of all charges other than Counts 4 and 6,

felonious assault. On February 16, 2011, the trial court sentenced Addison to eight years

on Count 4 and two years on Count 6, to run consecutive, for a total prison sentence of

ten years.

       {¶ 14} Addison appeals, raising the four assignments of error contained in the

appendix to this opinion.

       {¶ 15} In his first assignment of error, Addison argues that his convictions for

felonious assault against both William Davis and Anthony Brown were not supported by

sufficient evidence. We agree.

       {¶ 16} The standard of review with regard to the sufficiency of the evidence is set

forth in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), as follows:

       Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
       acquittal if the evidence is such that reasonable minds can reach different
       conclusions as to whether each material element of a crime has been proved
       beyond a reasonable doubt.

       {¶ 17} Bridgeman must be interpreted in light of the sufficiency test outlined in

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

in which the Ohio Supreme Court held:
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       An appellate court’s function when reviewing the sufficiency of the
       evidence to support a criminal conviction is to examine the evidence
       submitted 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. (Citation omitted.)

       {¶ 18} The court found Addison guilty of felonious assault, which pursuant

to R.C. 2903.11 provides as follows: No person shall knowingly * * * cause

serious physical harm to another * * *.

              {¶ 19} R.C. 2901.01 defines serious physical harm as follows:

       “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.

       {¶ 20} For purposes of clarification, this court shall address the two charges of

felonious assault separately.

                           Felonious Assault of William Davis
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       {¶ 21} In support of the charge of felonious assault on victim William Davis, the

state points to the testimony of Justin Brown and Dr. Dan Galita. Justin Brown testified

that he saw Addison reach up and strike William with a black object “like a hook from

the top of his head.” Tr. 43. Brown could not identify the object but stated that William

was highly intoxicated at the time of both fights and that after being hit, he stumbled, got

up, and ran away. Justin could not identify any injuries to William at that time because

he, William, and Anthony all fled from the area.

       {¶ 22} Dr. Dan Galita testified that the victim suffered a fracture of his right

zygomatic bone, a thin bone located just below the right orbit towards the right temple,

which the state attributes to the punch delivered by Deshawn Lee. Dr. Galita also

testified that the victim had a left occipital skull fracture ten centimeters long located in

the back of the head on the left side. Dr. Galita could not identify the source of this

fracture but testified that it could have been caused by a fall into the ravine where

William’s body was found.

       {¶ 23} In viewing this evidence in the light most favorable to the prosecution, this

court cannot say that any rational trier of fact could have found the essential elements of

felonious assault proven beyond a reasonable doubt. See Jenks. In the present case, the

State has failed to present any testimony or evidence proving serious physical harm as a

result of the altercation between Addison and William. The testimony provided by Justin

Brown could at best be construed as evidence that Addison struck William in the head but
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it provides no evidence of serious physical harm, as William fled without Justin observing

any injuries.

       {¶ 24} Addison testified on his own behalf, admitting to fist fighting but denying

that he ever struck anyone with anything other than his fist. Further, Addison could not

identify whether he actually struck William but that when he returned a punch to Anthony

Brown, he may have struck another person standing in the parking lot. Addison related

that there were a lot of people fighting and that it all happened very quickly.

       {¶ 25} In viewing the evidence in the light most favorable to the prosecution, we

cannot ignore the fact that the state has failed to prove a causal nexus between a fight and

the blunt force trauma that the state claims was the result of that fight. In either case,

because William’s injuries were sustained in circumstances so speculative in nature and

because no witness was able to observe and testify to William’s condition after this

second fight, this court cannot let a conviction for felonious assault stand.

       {¶ 26} Accordingly, we find that the state did not present sufficient evidence to

support Addison’s conviction for felonious assault against William Davis.

                           Felonious Assault of Anthony Brown

       {¶ 27} In support of the charge of felonious assault against Anthony, the state

presented the testimony of his brother, Justin Brown. Justin testified that he observed

Addison strike Anthony in the head with the same object that he had used to strike

William. Justin testified that he observed his brother in a “bad condition” bleeding from
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the head and stumbling around. Justin identified two photographs of Anthony’s head

that showed he was bleeding on the night of July 7, 2010. However, the state failed to

present any additional authenticating evidence as to who took the pictures or where they

were taken.

      {¶ 28} In response, the defense argues that the state failed to prove the element of

serious physical harm. Because Anthony Brown failed to testify against Addison and,

because Anthony refused medical treatment at the hospital, there is no evidence proving

serious physical harm.

      {¶ 29} We agree. Serious physical harm is specifically described in R.C. 2901.01

and requires a demonstration of at least one of five enumerated factors. In the present

case, the state has failed to present sufficient evidence that Anthony suffered serious

physical harm. Evidence that Anthony was bleeding from the head is not sufficient to

prove he suffered serious physical harm. Additionally, Justin’s testimony that Anthony

was bleeding and stumbling is not sufficient to meet the statutory definition. There was

no evidence that Anthony         suffered prolonged intractable pain, that he had any

permanent disfigurement, or that the injury caused him substantial temporary incapacity.

Anthony’s refusal of medical treatment deprives this court of any medical documentation

of Anthony’s alleged injuries.

      {¶ 30} The state has failed to prove that Addison caused Anthony’s injuries that

were depicted in the photographs.      Deshawn Lee admitted that he struck Anthony
                                            12

multiple times in the head that night, testimony that was bolstered by George Strickland.

However, Addison also admitted that he struck Anthony in the head with a closed fist.

Justin Brown could not testify to his brother’s condition after either fight because he was

20 to 25 feet away at the time and it was dark in the parking lot.

       {¶ 31} Accordingly, we conclude that the state failed to support Addison’s

conviction of felonious assault against Anthony Brown with sufficient evidence.

       {¶ 32} “[I]t is well established that this court has the authority to reduce a

conviction to that of a lesser included offense when it is supported by the record, rather

than ordering an acquittal or a new trial.” State v. Reddy, 192 Ohio App.3d 108, 119,

2010-Ohio-5759, 948 N.E.2d 454 (8th Dist.), citing State v. Davis, 8 Ohio App.3d 205,

207, 456 N.E.2d 1256 (8th Dist.1982).

       {¶ 33} In the present instance, although the state failed to introduce sufficient

evidence of serious physical harm in connection with both of appellant’s convictions for

felonious assault we find that the record contains sufficient evidence to support

convictions for simple assault in violation of R.C. 2903.13(A) in both instances.

       {¶ 34} Simple assault, in violation of R.C. 2903.13(A), is a lesser-included offense

of felonious assault. State v. Caster, 8th Dist. No. 87783, 2006-Ohio-6594, 2006-WL

3634857, at ¶ 6. We, therefore, modify Addison’s convictions of felonious assault to

convictions of simple assault in violation of R.C. 2903.13(A), and remand for

resentencing.
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       {¶ 35} Based on the foregoing, we sustain Addison’s first assignment of error,

rendering his second and third assignments of error moot.

       {¶ 36} In his fourth assignment of error, appellant argues that he was denied a fair

trial when the state improperly impeached its own witnesses in violation of Evid.R. 607

and that the state bolstered that error when it was argued to the jury that those statements

were substantive evidence.

       {¶ 37} In this case, on redirect examination, the state provided to witness DeShawn

Lee, the written statement that he had provided to the police on July 15, 2010. Without

objection, the state was permitted to question DeShawn regarding the contents of this

statement, which ostensibly was provided to him to refresh his recollection.

       {¶ 38} The state, however, failed to lay the proper foundation that would allow this

line of questioning.

       {¶ 39} Although DeShawn responded that he did not necessarily remember

everything that he reported to the police, he was never asked if reviewing his statement

would refresh his recollection and, subsequently, if his recollection was refreshed after

reading the statement. Therefore, the use of DeShawn’s statement was inappropriate if

used as the state now claims to refresh his recollection.

       {¶ 40} After the witness reviewed his statement, the state propounded to him

leading questions. However, the defense failed to object at trial to the use of DeShawn’s

written statements or to the leading questions asked of him.
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       {¶ 41} As to witness Lewis, the state, again without objection and as it did with

DeShawn, posed leading questions.

       Leading questions should not be used on the direct examination of a witness
       except as may be necessary to develop his testimony. State v. Johnson, 8th
       Dist. No. 82340, 2003-Ohio-6634, 2003 WL 22922964.

       {¶ 42} It is wholly within the discretion of the trial court to permit the state to ask

leading questions of its own witnesses. As stated in State v. Lewis, 4 Ohio App.3d 275,

448 N.E.2d 487 (3d Dist.1982), “the exception ‘except as may be necessary to develop his

testimony’ is quite broad and places the limits upon the use of leading questions on direct

examination within the sound judicial discretion of the trial court.”

       {¶ 43} In this case, we cannot say that appellant was prejudiced by the admission

of the evidence. Although many of the state’s questions were improper, they did not rise

to the level of reversible error.

       {¶ 44} Appellant’s fourth assignment of error is overruled.

       {¶ 45} Addison’s judgment of conviction and sentence is vacated.

       {¶ 46} Addison’s convictions for felonious assault are reversed and modified to

convictions for simple assault in violation of R.C. 2903.13(A). This cause is remanded

to the lower court for further proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the
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lower court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR


                                        Appendix

Assignments of Error:

      “I. The State failed to present sufficient evidence to sustain Appellant’s
conviction.

      II. The Appellant was denied his constitutional right to confront his accuser
and challenge the witness against him.

      III. The Appellant’s convictions were against the manifest weight of the
evidence.

      IV. The Appellant was denied a fair trial when the State improperly
impeached its own witnesses in violation of Evid.R. 607 and argued that the
statements were substantive evidence.”
