[Cite as State v. Masci, 2012-Ohio-359.]



                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 96851



                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           SETH MASCI
                                                     DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-545579

        BEFORE: Stewart, J., Kilbane, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                    February 2, 2012

ATTORNEY FOR APPELLANT
Patricia J. Smith
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

      {¶ 1} Defendant-appellant Seth Masci, appeals from his conviction of two counts

of felonious assault as a result of running over Matthew Hlywiak with an automobile

during an ongoing dispute.       Masci complains that the convictions were based upon

insufficient evidence and were against the manifest weight of the evidence.        He

alternatively contends that the evidence presented, at best, supports a conviction for

aggravated assault. For the following reasons, we affirm.

      {¶ 2} Trial testimony of the circumstances leading up to the incident is both

conflicting and convoluted. However, the following facts are uncontroverted.

      {¶ 3} On November 16, 2010, Hlywiak, the victim, met with former girlfriend

Nicole Kauntz at the home of a mutual acquaintance, Ian Evans, for a night of drinking
and partying.    Others soon arrived, including Masci, his girlfriend Gina LaPorte,

Keighleigh Scharf, and a man referred to as “King.”          Hlywiak became extremely

inebriated and began to quarrel with Kauntz. Masci intervened in the argument, and then

left the residence with Kauntz, LaPorte, and King. The four got into LaPorte’s Chevy

Blazer, but were accosted by Hlywiak, who struck the vehicle with his fist before they

were able to leave. Masci drove away and Hlywiak went back inside the home.

       {¶ 4} A rock shattered the front window of the Evans’ residence a short time

later, and Hlywiak set out to identify the perpetrator. Hlywiak claims that he found

Kauntz and Scharf in the rear parking lot of a nearby bar, and while questioning them

about the rock throwing incident, he was run over by the Blazer. Hlywiak was taken to

the hospital and treated for fractured ribs, a punctured lung, torn ligaments and tendons,

and lacerations to his back.

       {¶ 5} Cleveland Police Detective, Laura Parker, began investigating the incident

on November 17, 2010. She spoke with Hlywiak at the hospital. She located and

photographed LaPorte’s Blazer that was parked at the couple’s residence. Detective

Parker also interviewed LaPorte and Masci, but did not take any written statements.

       {¶ 6} After Detective Parker completed the investigation and presented her

findings to the prosecutor, Masci was charged with two counts of felonious assault

pursuant to R.C. 2903.11(A)(1) and (2). He pleaded not guilty, elected to try his case to

the bench, and was found guilty of both counts.
       {¶ 7} In his first assignment of error, Masci argues that the trial court erred when

it found him guilty because the evidence necessary to prove, beyond a reasonable doubt,

who had caused the harm was insufficient. He claims that the state did not prove that he

was the driver of the vehicle that ran over Hlywiak because the totality of the trial

testimony was inconsistent and unclear.       Masci contends that it was dark and that

Hlywiak’s drunken state precluded him from accurately identifying the driver of the

Blazer.

       {¶ 8} When reviewing the sufficiency of the evidence to support a criminal

conviction, an appellate court examines the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt. State v.

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

verdict will not be disturbed based upon insufficient evidence unless it is apparent that

reasonable minds could not reach the conclusion reached by the trier of fact. State v.

Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001); Jenks at 273.

       {¶ 9} R.C. 2903.11, the statute defining felonious assault, states, in pertinent part

that “(A) No person shall knowingly: (1) Cause serious physical harm to another; (2)

Cause or attempt to cause physical harm to another by means of a deadly weapon * * *.”
       {¶ 10} In State v. Johnson, 4th Dist. No. 04CA2786, 2005-Ohio-6873, 2005 WL

3527018, ¶ 22, the appellant argued that the circumstantial evidence presented to

“convince the average mind, beyond a reasonable doubt, that he operated the motor

vehicle in question” was insufficient. The court stated that “to sustain a conviction, the

[c]ity was required to produce some evidence that [a]ppellant operated the motor

vehicle.” Id. at ¶ 27. The reviewing court sustained the assignment of error after noting

that the city had failed to proffer any proof that the appellant operated the motor vehicle.

Id. at ¶ 28.

       {¶ 11} In this case, the state presented the testimony of several witnesses to place

Masci in the driver’s seat of the Blazer. Hlywiak and Kauntz testified that Masci was the

driver of the Blazer when it departed the Evans’ home. Dawn Orengo, a disinterested

witness, observed the argument and ensuing assault with the Blazer from the window of

her residence across the street. Orengo testified that she saw a white male wearing a

white t-shirt driving the Blazer when it backed up, aimed at, and ran over Hlywiak.

Hlywiak testified that, in spite of his blood alcohol content level of at least 2.78, he could

“see [the driver of the Blazer] clearly, because [he] was on top of the hood for a minute.”

He also stated that Masci was wearing “all black with black sunglasses.” Twenty-two

days after the incident, Hlywiak identified Masci and LaPorte from photo lineups.

       {¶ 12} Conversely, LaPorte testified that she accompanied Masci, King, who is

African-American, and a white male called “P” to retrieve keys to the Blazer that

Hlywiak had taken from the ignition earlier in the incident, and that P was driving.
Masci testified that P had accompanied them earlier to the Evans’ residence and was

driving the Blazer when Hlywiak was struck. However, when Masci and LaPorte were

asked by the state and the trial court to provide P’s full name, address, or place of

employment, they could not. And Detective Parker testified that when she questioned

Masci and LaPorte, they never mentioned the presence or participation in the incident of

an individual named P.

       {¶ 13} While Orengo’s testimony does not positively identify Masci as the driver

and also conflicts with Hlywiak’s recollection of the driver’s clothing, her testimony

provides strong circumstantial corroboration when combined with the version of events

that Hlywiak and Kauntz provided. If the trier of fact found P’s existence to be doubtful,

Masci is the only white male that can be placed inside the Blazer at the time of the

incident.   Left with the remaining testimony, our review yields no further evidence

inconsistent with the conclusion that Masci was driving the vehicle at the time Hlywiak

was hit.

       {¶ 14} Additional testimony was sufficient to permit the trial court to conclude that

Masci knowingly attempted to cause serious physical harm to Hlywiak. Dwayne Pryor, a

disinterested witness standing eight or nine houses away, testified that he observed the

Blazer strike Hlywiak and opined that the driver was attempting “[t]o crush him * * *

[b]ecause when he hit the gas, his body kicked out from the back tire.” Orengo testified

that she saw the Blazer “back up, sort of to gain momentum, and pull over the tree lawn,
to hit the guy on foot.” Physical harm to Hlywiak is established by his testimony and by

medical records documenting his injuries.

       {¶ 15} There is no question with regard to the “deadly weapon” used in this case.

“It is well established that an automobile can be classified as a deadly weapon when used

in a manner likely to produce death or great bodily harm.” State v. Fredericy, 8th Dist.

No. 95677, 2011-Ohio-3834, 2011 WL 3359977, ¶ 12, citing State v. Kilton, 8th Dist. No.

80837, 2003-Ohio-423, 2003 WL 194852. Masci even concedes as much. Masci’s first

assignment of error is overruled.

       {¶ 16} In his second assignment of error, Masci argues that the trial court’s verdict

was against the manifest weight of the evidence because no corroborating evidence was

proffered to demonstrate that he was driving the vehicle when it struck Hlywiak, and the

contradicting and unreliable testimony makes any one version of events implausible. He

additionally argues that, at best, he should have been convicted of aggravated assault.

       {¶ 17} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

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

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

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 340, 515 N.E.2d 1009 (1986). The use of the word “manifest” means that the trier

of fact’s decision must be plainly or obviously contrary to all of the evidence. This is a

difficult burden for an appellant to overcome because the resolution of factual issues
resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), paragraph one of the syllabus. The trier of fact has the authority to “believe or

disbelieve any witness or accept part of what a witness says and reject the rest.” State v.

Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶ 18} To bolster his challenge to the evidence as being untrustworthy, Masci

points to (1) Hlywiak’s intoxication, (2) discrepancies with the testimony regarding

Masci’s clothing, (3) darkness, (4) the delay in Hlywiak’s photo identification, (5) the

personal agendas of all witnesses to not tell the truth, and (6) the absence of a formal

written statement to law enforcement.

       {¶ 19} In State v. Hudson, 8th Dist. No. 91803, 2009-Ohio-6454, 2009 WL

4694916, ¶ 47, the appellant contended that the state’s primary witnesses lacked

credibility because they were drunk when the incident occurred and gave inconsistent

testimony about the shirt he was wearing.     The court noted that “[a]ppellant is correct in

his assertion that a witness’s state of intoxication may raise a credibility issue.” Id. at ¶

48, citing State v. Warren, 8th Dist. No. 83709, 2004-Ohio-4477, 2004 WL 1902371.

Nevertheless, the court pointed out that “the real issue is not whether the witnesses had

been drinking, but whether, given some level of intoxication and the inconsistencies, the

testimony was sufficiently consistent and believable so that it was reasonable for the

[finder of fact] to accept.” Id.

       {¶ 20} Although Hlywiak was highly intoxicated, his version of events, except for

Masci’s attire, was largely consistent with the testimony of Orengo. The testimony of
Kauntz also places Masci in the driver’s seat when the victim was hit. That the trial

court chose to disbelieve that someone named P was driving the Blazer when it struck

Hlywiak, or for that matter that P even existed, is not plainly or obviously contrary to all

the other evidence presented.

       {¶ 21} Finally, Masci contends that the court should have alternatively found him

guilty of aggravated assault. He argues that, if he did hit Hlywiak, he did so in retaliation

after Hlywiak started the altercation.

       {¶ 22} Aggravated assault is not a lesser included offense of felonious assault, but

instead is “an inferior degree of felonious assault with a reduction in penalty upon the

determination by the trier of fact of the existence of the mitigating circumstance of

serious provocation.” State v. Coleman, 8th Dist. No. 80595, 2002-Ohio-4421, 2002 WL

1980806, ¶ 18. The offense of aggravated assault is premised upon the acts of a person

occasioned to cause serious physical harm “while under the influence of sudden passion

or in a sudden fit of rage, either which is brought on by serious provocation, occasioned

by the victim that is reasonably sufficient to incite the person into using deadly force * *

*.” R.C. 2903.12. “In determining whether the provocation was reasonably sufficient

to incite the defendant into using deadly force, the court must consider the emotional and

mental state of the defendant and the conditions and circumstances that surrounded him at

the time.” Coleman at ¶ 19, citing State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294

(1988), paragraph five of the syllabus.
       {¶ 23} Evidence adduced at trial supporting Masci’s argument include the

following. Masci, Kauntz, and LaPorte testified that Hlywiak exhibited aggressive and

menacing behavior from the time they arrived at the Evans’ residence. Kauntz testified

that Hlywiak punched the windows of the Blazer while the group attempted to leave.

LaPorte’s testimony and photographs admitted into evidence establish that Hlywiak

damaged the driver side mirror and window of the Blazer and also gouged the paint of the

vehicle lengthwise with a pocket knife.      LaPorte and Masci testified that Hlywiak

snatched LaPorte’s ring of keys from the Blazer’s ignition in an attempt to prevent them

from leaving. LaPorte and Masci testified also that Hlywiak came to their residence and

continued to threaten them. In fact, the site where Hlywiak was run down by the Blazer

was in very close proximity to their home.

       {¶ 24} Masci requested the trial court to consider finding him guilty of aggravated

assault.   And “in a bench trial it is presumed that the trial court considered the

appropriate inferior and lesser-included offenses and defenses.” State v. Perez, 8th Dist.

No. 91227, 2009-Ohio-959, 2009 WL 548143, ¶ 61, citing State v. Waters, 8th Dist. No.

87431, 2006-Ohio-4895, 2006 WL 2692843, ¶ 11. However, Masci denied being the

driver of the vehicle when it struck Hlywiak, thus contradicting any argument that he was

provoked into hitting the victim.

       {¶ 25} In State v. Leibold, 8th Dist. No. 62071, 1993 WL 69548 (Mar. 11, 1993),

the appellant was convicted of felonious assault, and argued that the facts offered in his

case provided sufficient evidence of serious provocation in order to sustain a guilty
finding only of aggravated assault. The court noted that the appellant’s defense theory

was that he did not commit the assault, therefore, it would have been inconsistent to argue

that he was provoked into committing the offense because the argument had no

foundation.   Id.   “Where a defendant interposes a complete defense to the charged

crime, a lesser [or inferior] offense consideration is inappropriate.” Id., citing State v.

Solomon, 66 Ohio St.2d 214, 221, 421 N.E.2d 139 (1981). Also, because this case was

tried to the bench, “there is no indication that the trial court as factfinder may not have

considered the alleged provocation and decided it wasn’t sufficient to operate to reduce

the crime from felonious assault to aggravated assault.” Id. See also State v. Arnold,

8th Dist. No. 71262, 1997 WL 606716 (Oct. 2, 1997); State v. Salwan, 8th Dist. No.

68713, 1996 WL 284857 (May 30, 1996).

       Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.       Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
