[Cite as State v. Rice, 2016-Ohio-7185.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           BROWN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NO. CA2016-03-005
        Plaintiff-Appellee,                      :
                                                                OPINION
                                                 :               10/3/2016
    - vs -
                                                 :

CALEB RICE,                                      :

        Defendant-Appellant.                     :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                           Case No. CRI2015-2316



Jessica Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Timothy Kelly, 108 South High Street, P.O. Box 467, Mt. Orab, Ohio 45154, for defendant-
appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Caleb Rice, appeals his convictions in the Brown

County Court of Common Pleas for felonious assault and domestic violence.

        {¶ 2} DeLynn Finley lived by herself in an apartment in Ripley, Ohio. Finley was

acquainted with Rice. In late September 2015, Rice asked Finley if his girlfriend, Ashleigh

Thomas, could stay at Finley's apartment. Finley agreed to let Thomas move in for a few
                                                                      Brown CA2016-03-005

days.

          {¶ 3} After Thomas moved in, Finley had a seizure and was hospitalized. When

Finley returned home from the hospital in early October 2015, she found Rice and Thomas

living in her apartment.

          {¶ 4} Finley asked Rice and Thomas to leave, but they refused. Sometime later,

Finley saw police drive by and had them remove Rice and Thomas. But the couple returned

later that day and broke into the apartment.

          {¶ 5} Finley claimed that over the next month she lived with Rice and Thomas as a

quasi-captive. Rice threatened that if Finley contacted the police he would kill or injure her.

Rice assaulted Finley numerous times. Thomas monitored Finley during the day while Rice

was away. Finley claimed she was so intimidated by Rice that she was too scared to contact

police.

          {¶ 6} In late October 2015, Finley confronted Rice and asked him to leave. In

response, Rice grabbed Finley by the hair and repeatedly slammed her head into a wall in

the apartment. Finley did not report the assault to police or seek medical attention.

          {¶ 7} On the morning of November 8, 2015, Rice attacked Thomas in the

apartment. Thomas fled. A neighbor who encountered Thomas called 9-1-1. A Ripley

police officer responded and observed Thomas crying and hysterical. Thomas told the

police officer that Rice assaulted her. Later, Finley told the police officer that Rice had

assaulted her as well.

          {¶ 8} A Brown County grand jury indicted Rice for two counts of felonious assault,

one for Finley and one for Thomas, and two counts of domestic violence, one count for each

as well. The court held a plea hearing about a month before trial. The state offered a prison

term of five years in return for Rice's agreement to plead guilty to two felony domestic

violence charges. Rice failed to respond to a question from the court while it conducted its

                                             -2-
                                                                      Brown CA2016-03-005

plea colloquy. The court recessed the hearing and set the matter for trial.

       {¶ 9} Before trial the state dismissed the domestic violence count with respect to

Finley. The state tried the remaining counts by jury, who found Rice: (1) guilty of domestic

violence against Thomas; (2) guilty of felonious assault against Finley; and (3) not guilty of

felonious assault against Thomas.

       {¶ 10} The court imposed an aggregate sentence of 13 years in prison. On appeal,

Rice raises three assignments of error for our review.

       {¶ 11} Assignment of Error No. 1.

       {¶ 12} THE TRIAL COURT ERRED BY TERMINATING APPELLANT'S PLEA

HEARING AND ORDERING THAT THE MATTER PROCEED TO TRIAL.

       {¶ 13} Rice argues that the court abused its discretion by terminating his plea

hearing. Rice contends he wished to enter into the plea agreement but the court abruptly

ended the hearing without asking him additional questions to determine the voluntariness

of his plea.

       {¶ 14} Crim. R. 11(C)(2) provides that a court "may" refuse to accept a plea of guilty

in felony cases. It is well established that a trial judge has discretion in whether to accept

or reject a plea. State v. Russell, 12th Dist. Butler No. CA91-03-053, 1991 WL 219603, *2

(Oct. 28, 1991). While the decision to accept or reject a plea is discretionary, Crim. R.

11(C)(2)(a) requires the trial court to determine that a defendant is entering his or her plea

"voluntarily" before accepting it.

       {¶ 15} We have reviewed the record of the plea hearing and conclude that the trial

court did not abuse its discretion in recessing the hearing and setting the matter for trial.

The record reflects that the trial court was concerned about Rice's voluntariness in entering

the plea. Among other comments, the court stated: "I'm really concerned. I don't think you

wanna do this. And nobody does anything in this courtroom, they don't wanna do, by way

                                            -3-
                                                                      Brown CA2016-03-005

of plea. Do you wanna do this or not?"

       {¶ 16} Rice indicated he was ready to proceed. But later in the hearing the state

read facts into the record related to the domestic violence count against Finley. The court

asked Rice if he had any comment on the facts as read. Rice failed to respond. The court

then adjourned the hearing.

       {¶ 17} The trial court was in a better position to observe Rice's demeanor at the plea

hearing and to determine whether he was prepared to enter a plea. The refusal to respond

to a question from the trial court during the plea colloquy indicates that Rice was

uninterested in pleading. Notably, neither the state or Rice's counsel objected when the

trial court announced it was recessing the plea hearing and setting the matter for trial.

       {¶ 18} Rice argues that his failure to answer may have been caused by the court

calling him an incorrect surname. During the plea hearing, the trial court repeatedly referred

to Rice by the last name "Blevins." Rice informed the court that his name was not Blevins,

but the court continued mistakenly calling him Blevins. However, the record is clear that

Rice knew that the court was addressing him. Accordingly, Rice's first assignment of error

is overruled.

       {¶ 19} Assignment of Error No. 2.

       {¶ 20} A CONVICTION OF FELONIOUS ASSAULT UNDER OHIO REVISED CODE

SECTION 2903.11(A)(1) WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

AND INSUFFICIENT TO SUPPORT A CONVICTION.

       {¶ 21} Rice argues that his conviction for felonious assault against Finley is not

supported by sufficient evidence and is against the manifest weight of the evidence. He

contends that the evidence did not support a finding that he inflicted "serious physical harm"

on Finley. And he argues that Finley's testimony was not credible, because she did not

report the attack or seek medical attention.

                                               -4-
                                                                      Brown CA2016-03-005

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

conviction, an appellate court's function is to examine the evidence admitted at trial to

determine whether such evidence, viewed in a light most favorable to the prosecution,

would convince the average mind of the defendant's guilt beyond a reasonable doubt. State

v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 17.

       {¶ 23} In determining whether a judgment is against the manifest weight of the

evidence, an appellate court must look at 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. Cooper, 12th Dist. Butler No. CA2010-05-113, 2011-Ohio-1630, ¶ 7.               The

discretionary power to grant a new trial should be exercised only in exceptional cases where

the evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380,

387 (1997).

       {¶ 24} The jury found Rice guilty of felonious assault, a violation of R.C.

2903.11(A)(1), which prohibits causing "serious physical harm" to another. The Revised

Code defines "serious physical harm" as (in pertinent part): "[a]ny physical harm that

involves some permanent disfigurement or that involves some temporary, serious

disfigurement; [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)(d) and (e).

       {¶ 25} Finley testified that Rice grabbed her by the hair and repeatedly slammed her

head against a wall in her apartment. The attack was so forceful it created a hole. Rice

also ripped out a "handful" of Finley's hair, "roots and all." Finley described the attack as

"extremely painful," and that she experienced pain for two weeks after the attack. Finley

                                            -5-
                                                                       Brown CA2016-03-005

also testified that she has a permanent bald spot on her head where Rice ripped out her

hair.

        {¶ 26} We find that these facts constitute sufficient evidence of serious physical

harm. See, e.g., State v. Robbins, 12th Dist. Warren No. CA86-06-033, 1987 WL 13701,

*2 (June 29, 1987) (victim's hair pulled from head while thrust around the room); State v.

Frank, 12th Dist. Clermont No. CA93-09-065, 1994 WL 178449, *4 (May 9, 1994) (victim's

head deliberately rammed against wall several times).

        {¶ 27} Next, Rice argues that his conviction for felonious assault was against the

manifest weight of the evidence because Finley's testimony was not credible. Rice argues

that Finley's testimony was unbelievable because she never contacted police to report her

allegations of Rice's violent acts or sought medical attention. Rice also argues that Finley's

testimony was inconsistent as to whether Rice lived at her apartment.

        {¶ 28} With respect to credibility determinations, we defer to the fact-finder. State v.

Andrews, 12th Dist. Butler No. CA2009-02-052, 2010-Ohio-108, ¶ 46. The jury found Finley

credible, and we will not second guess its judgment in the absence of evidence strongly

suggesting that the jury "lost its way." Id. at ¶ 45.

        {¶ 29} The evidence at trial corroborated Finley's testimony that Rice repeatedly

slammed her head into a wall and, in doing so, ripped hair off of her head. The state

introduced a photograph of Finley's head, depicting the bald spot. A police officer testified

that the hole in the wall was freshly plastered and still wet to the touch when he observed it

in Finley's apartment on November 8, 2015. The state called Michael Gilbert, who testified

that Rice asked him to repair the hole and told him that he put Finley's head through it.

Gilbert could not recall when he made the repair, but when told that the police officer

testified that the plaster was wet on November 8, estimated he made the repair on

November 6. Finally, the state introduced a letter that Rice wrote to Gilbert. In the letter,

                                              -6-
                                                                      Brown CA2016-03-005

Rice asked Gilbert to testify that the hole in the wall occurred much earlier than late October

or early November 2015.

       {¶ 30} Rice claims that Finley's testimony was inconsistent as to whether he lived at

her apartment or not, however we find no inconsistencies in her testimony. Finley testified

that Rice did not live at her apartment before her hospitalization, but had moved in by the

time she returned home. While Finley's decision not to seek medical attention or report

Rice's attack could weigh on her credibility, she explained that she was too fearful of Rice

to contact police. She did not explain the failure to seek medical attention, but that was a

matter for the jury to consider in their deliberations.

       {¶ 31} After carefully reviewing the record, we find that there was sufficient evidence

to support Rice's conviction for felonious assault. Further, we do not find that the jury lost

its way or created such a manifest miscarriage of justice that his conviction must be

reversed and a new trial ordered. Consequently, Rice's second assignment of error is

overruled.

       {¶ 32} Assignment of Error No. 3.

       {¶ 33} THE TRIAL COURT ERRED BY ALLOWING OFFICER HERREN TO

TESTIFY AS TO WHAT ASHLEIGH THOMAS HAD SAID TO HIM, SINCE SHE WAS NOT

PRESENT IN COURT.

       {¶ 34} Thomas did not testify at trial, and Rice contends that the trial court erred by

allowing the police officer to testify that Thomas identified Rice as her attacker. The trial

court admitted Thomas' hearsay statement under the "excited utterance" exception. Rice

argues that sufficient time had passed between the attack and the time of Thomas'

statement such that it was not made because of the excitement of the situation.

       {¶ 35} The trial court has broad discretion in the admission or exclusion of evidence.

State v. Rice, 12th Dist. Butler No. CA2003-01-015, 2004-Ohio-697, ¶ 18. To reverse, an

                                              -7-
                                                                      Brown CA2016-03-005

appellate court must conclude that the trial court abused its discretion. Id. An abuse of

discretion occurs when the trial court acts arbitrarily, unreasonably, or unconscionably. Id.

       {¶ 36} Evid.R. 803(2) provides a hearsay exception for "[a] statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition." The controlling factor in analyzing whether a statement

is an excited utterance is whether the declaration was made under such circumstances as

would reasonably show that it resulted from impulse rather than reason and reflection. State

v. Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-4316, ¶ 27. In Knecht, this

court concluded that the trial court properly admitted hearsay statements where two police

officers testified that a domestic violence victim was "crying, very upset, emotional,

distraught" when they first spoke with her. Id. at ¶ 28. The police also observed injuries on

the victim's head and face. Id. at ¶ 5.

       {¶ 37} We conclude that the trial court did not abuse its discretion in allowing the

police officer to testify as to Thomas' hearsay statements inculpating Rice. The evidence

established that Thomas fled from Finley's apartment to a nearby apartment building

immediately after Rice attacked her. A resident of that apartment building then called 9-1-

1, who dispatched the police. The police officer arrived on scene two minutes after being

dispatched. The officer contacted Thomas within five minutes of arriving on scene. When

he approached Thomas and she began explaining what happened, the officer noted that

she was crying, hysterical, holding her chest "repeatedly," holding a towel to her face, had

red marks on her face, and had urinated on herself. We conclude these facts show

circumstances demonstrating that Thomas' statements resulted from impulse and the

stress of the situation and not reason and reflection.

       {¶ 38} Accordingly, we find no abuse of discretion in the court's decision to admit the

hearsay statement. Rice's third assignment is therefore overruled.

                                            -8-
                                      Brown CA2016-03-005

{¶ 39} Judgment affirmed.



HENDRICKSON and PIPER, JJ., concur.




                              -9-
