[Cite as State v. Mukes, 2020-Ohio-127.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :   Appellate Case No. 28350
                                                :
 v.                                             :   Trial Court Case No. 2017-CR-1538
                                                :
 JOHN T. MUKES                                  :   (Criminal Appeal from
                                                :   Common Pleas Court)
         Defendant-Appellant                    :
                                                :

                                           ...........

                                           OPINION

                           Rendered on the 17th day of January, 2020.

                                           ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                           .............




WELBAUM, J.
                                                                                       -2-




      {¶ 1} Defendant-appellant, John T. Mukes, appeals from his conviction in the

Montgomery County Court of Common Pleas after a jury found him guilty of felony murder

and felonious assault; the offenses merged and he was convicted of murder. In support

of his appeal, Mukes contends that his conviction was not supported by sufficient

evidence and was against the manifest weight of the evidence. For the reasons outlined

below, Mukes’ judgment of conviction will be affirmed.



                          Facts and Course of Proceedings

      {¶ 2} On July 14, 2017, the Montgomery County Grand Jury returned an indictment

charging Mukes with one count of felony murder in violation of R.C. 2903.02(B) and one

count of felonious assault in violation of R.C. 2903.11(A)(1). The charges stemmed from

the murder of Mukes’ 78-year-old mother, Mary Hinesmon. It was alleged that Mukes

beat and strangled Hinesmon to death in her bedroom at a home on Hoover Avenue in

Dayton, Ohio.

      {¶ 3} Mukes pled not guilty to the charges and the matter proceeded to a jury trial.

At trial, it was established that Mukes called 9-1-1 on the morning of July 3, 2016, and

reported that Hinesmon was “beat to death.” The State presented an audio recording of

Mukes’ 9-1-1 call and it was admitted into evidence as State’s Exhibit No. 43. On the

recording, Mukes can be heard advising the emergency responder that he lived with

Hinesmon and that she had been attacked the previous night while he was out “jogging

down the street.” Mukes told the responder that he had left the door to their residence

open and that someone had come into the residence while he was gone.
                                                                                       -3-


      {¶ 4} When the police arrived at the scene, Hinesmon was found dead on her

bedroom floor.    Detective Rod Roberts testified that Hinesmon’s body was found

wrapped in a bedsheet, part of which was torn and wrapped around Hinesmon’s neck.

Photographs of Hinesmon’s body were taken at the scene and admitted into evidence as

State’s Exhibit Nos. 67-72. The photographs confirmed Roberts’ testimony and also

showed that part of the bedsheet was covering Hinesmon’s mouth.

      {¶ 5} Hinesmon’s niece who lived across the street, Inez Harbour, testified that she

went to Hinesmon’s residence on the morning in question prior to the police arriving.

Harbour testified that she went to the residence because Mukes’ girlfriend, Tara Haines,

knocked on her door and told her about Hinesmon’s unresponsive condition. Harbour

testified that when she arrived at the residence, Mukes was standing in the living room

emotionless with blood on his t-shirt. Harbour, a registered nurse, testified that when

she went to check on Hinesmon, she found Hinesmon lying on her bedroom floor wrapped

in her bedding. Harbour testified that she checked Hinesmon’s pulse and found none.

Harbour testified that she did not attempt to perform any life saving measures because

Hinesmon “was gone.” Trial Trans. p. 335.

      {¶ 6} Harbour further testified that she had previously visited Hinesmon’s

residence “hundreds” of times and noted that nothing was out of place in the residence

on the morning in question. Id. at 331, 339-340. Harbour also noted that there was no

sign of any damage to the residence. Multiple responding officers, including Detective

Roberts, Sergeant Robert Clinger, Officer Joshua Campbell, and evidence technician

Mark Hamilton similarly testified that they observed no signs of forced entry into the

residence. Clinger, Campbell, and Hamilton further testified that they observed blood on
                                                                                          -4-


Mukes’ t-shirt.

       {¶ 7} After the police arrived at the scene, Harbour testified that Mukes said to

himself “I wouldn’t hurt my mama.        I didn’t do nothing to my mama.”        Id. at 335.

Sergeant Clinger also testified that when he asked Mukes what was going on, Mukes said

“she wouldn’t let me leave last night.” Id. at 377. Clinger documented Mukes’ statement

in his police report and also reported it to Detective Roberts. Roberts testified that when

he later interviewed Mukes’ girlfriend, Haines, she confirmed that Mukes’ had made that

statement to Clinger.

       {¶ 8} Detective Roberts also testified that he observed a fresh scratch on the right

side of Mukes’ neck while Mukes was sitting in the backseat of Sergeant Clinger’s police

cruiser. Clinger testified that a short time after placing Mukes in his police cruiser, Mukes

began to hit his forehead against the partition that separates the front and rear cabins of

the cruiser.      The State presented video footage from Clinger’s cruiser camera that

showed Mukes sitting calmly in the back of the cruiser for approximately 20 minutes

before starting to bang his head on the partition. The video footage showed that Mukes

was only hitting the top of his forehead with slight force and was not causing injury to

himself or any other part of his body. The video also showed Clinger placing his hand

between Mukes’ head and the partition to prevent any injury to Mukes’ person. See

State’s Exhibit No. 116.

       {¶ 9} Officer Campbell testified that Mukes was eventually transferred to his police

cruiser, in which he was taken to the hospital for a mental health evaluation. Campbell

testified that he sat in the back of the police cruiser with Mukes to ensure that Mukes did

not harm himself. Campbell testified that Mukes was calm during his transport to the
                                                                                         -5-


hospital and suffered no injuries while in his presence.

       {¶ 10} After arriving at the hospital, Officer Campbell testified that evidence

technician Hamilton arrived to take pictures of Mukes and to collect Mukes’ clothing.

Hamilton testified that he photographed the scratch on the right side of Mukes’ neck that

was observed by Detective Roberts. Hamilton also photographed blood on Mukes’ right

ear, a scratch on the bridge of his nose, and a small scratch on one of his ring fingers.

Detective Roberts testified that he observed the scratch on Mukes’ nose at the hospital

and noted that it also appeared to be a fresh wound.       Roberts testified that a decision

was then made to arrest Mukes for Hinesmon’s murder.

       {¶ 11} Officer Campbell testified that Mukes became aggressive when he advised

Mukes that he was being placed under arrest. Campbell testified that Mukes would not

comply with his order to turn around so that Mukes could be handcuffed. According to

Campbell, Mukes pushed him and squared off in a fighting position when Campbell

attempted to physically turn Mukes around. Campbell testified that when Mukes refused

to turn around a second time, he tased Mukes so that he could get him to the ground and

handcuff him. Campbell testified that he was eventually able to handcuff Mukes with the

assistance of a sheriff’s deputy. Once handcuffed, Campbell transported Mukes to jail.

       {¶ 12} Dr. Kent Harshbarger, the coroner who autopsied Hinesmon’s body,

testified that Hinesmon had several abrasions, scratches, and contusions on her face,

neck, and chest. Harshbarger also testified that Hinesmon had conjunctival petechiae

(burst capillaries) in her eyes and injuries to her fingers. The injuries to Hinesmon’s

fingers included avulsions (missing tissue), lacerations, ripped-off fingernails, and a

crushed ring finger.   Photographs of these injuries were taken at the autopsy and
                                                                                        -6-


admitted into evidence as State’s Exhibit Nos. 1-31.          Harshbarger testified that

Hinesmon’s injuries were indicative of her being struck multiple times and strangled.

Harshbarger testified to a reasonable degree of medical certainty that Hinesmon’s cause

of death was due to strangulation.

        {¶ 13} Mary Barger, a forensic DNA analyst from the Miami Valley Regional Crime

Lab, testified that she performed DNA testing on various items of evidence in this case.

Barger testified that she tested the bloodstains on Mukes’ t-shirt and found only Mukes’

and Hinesmon’s DNA on the stains. Barger also noted that a majority of the DNA from

the bloodstains belonged to Hinesmon. Barger additionally testified to testing swabs

taken from Mukes’ fingernails.       Barger testified that she only detected Mukes’ and

Hinesmon’s DNA on the fingernail swabs, a majority of which belonged to Hinesmon.

Barger also tested a spot of blood on Mukes’ left shoe and found only Hinesmon’s DNA

present.

        {¶ 14} Barger further testified that Mukes’ DNA was detected underneath one of

Hinesmon’s right fingernails and that the bedding used to strangle Hinesmon contained

a mixture of only Mukes’ and Hinesmon’s DNA. In addition, Barger testified that Mukes

could not be excluded as a contributor to the DNA that was found on Hinesmon’s neck.

        {¶ 15} After presenting the foregoing testimony and evidence, the State rested its

case.    Mukes then moved for an acquittal under Crim.R. 29, which the trial court

overruled. Thereafter, Mukes testified in his defense.

        {¶ 16} While testifying, Mukes claimed that during the early morning hours of July

3, 2016, he left his house and walked down the street to a friend’s house to drink and play

cards. Mukes claimed that his mother was home when he left and that he forgot to lock
                                                                                          -7-


the door before leaving. Mukes testified that he returned home around 6:00 a.m. and

laid down to rest until 8:30 a.m. Mukes testified that he then went into his mother’s

bedroom to check on her because he did not hear her getting ready for church.

          {¶ 17} Continuing, Mukes testified that when he went into his mother’s bedroom

he found his mother lying on the floor with “all the blood and stuff.” Trial Trans. p. 612.

Mukes testified that he tried grabbing and shaking his mother to revive her. Mukes also

claimed that he attempted to perform CPR on his mother by lifting her up with his hands,

holding her by the neck, and blowing in her mouth. Mukes testified that when she did

not revive, he called 9-1-1 and his girlfriend, Haines, for help.

          {¶ 18} During his cross-examination, Mukes admitted that he had told the 9-1-1

responder that he had been out for a jog when his mother was attacked. Mukes also

admitted to having mobility issues and to occasionally walking with a cane. Mukes

further admitted to saying “I didn’t hurt my mama” when the police arrived at the scene.

Mukes, however, denied telling Sergeant Clinger that “she wouldn’t let me leave last

night.”

          {¶ 19} At the close of the evidence, the jury deliberated and found Mukes guilty of

both felony murder and felonious assault. During sentencing, the trial court merged the

offenses and ordered Mukes to serve 15 years to life in prison for murder. Mukes now

appeals from his conviction, raising a single assignment of error for review.



                                    Assignment of Error

          {¶ 20} Under his sole assignment of error, Mukes contends that his conviction for

felony murder was not supported by sufficient evidence and was against the manifest
                                                                                          -8-


weight of the evidence. We disagree.



                                    Standard of Review

       {¶ 21} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.) Id.

       {¶ 22} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating

whether a conviction was against the manifest weight of the evidence, the appellate court

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

witness credibility, 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.’ ” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the
                                                                                        -9-


evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,

2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14. “A judgment of conviction

should be reversed as being against the manifest weight of the evidence only in

exceptional circumstances.” Id., citing Martin at 175.



                                    Law and Analysis

      {¶ 23} As previously discussed, Mukes was convicted of felony murder in violation

of R.C. 2903.02(B). That statute provides that: “No person shall cause the death of

another as a proximate result of the offender’s committing or attempting to commit an

offense of violence that is a felony of the first or second degree[.]” R.C. 2903.02(B).

“Therefore, in order to convict a defendant of felony murder, the State is not required to

prove that the defendant had an intent to kill, but instead must prove that the defendant

intended to commit the underlying felony that proximately caused the victim’s death.”

State v. Slaughter, 2d Dist. Montgomery No. 25215, 2014-Ohio-862, ¶ 35, citing State v.

Mays, 2d Dist. Montgomery No. 24168, 2012-Ohio-838, ¶ 6.

       {¶ 24} It is well-established that felonious assault may serve as the underlying

offense of violence for a felony murder conviction. State v. Miller, 96 Ohio St.3d 384,

2002-Ohio-4931, 775 N.E.2d 498, syllabus. In this case, Mukes was also found guilty of

felonious assault in violation of R.C. 2903.11(A)(1), which provides that: “No person shall

knowingly * * * [c]ause serious physical harm to another[.]” R.C. 2903.11(A)(1). “A

person acts knowingly, regardless of purpose, when the person is aware that the person’s

conduct will probably cause a certain result or will probably be of a certain nature. A
                                                                                        -10-


person has knowledge of circumstances when the person is aware that such

circumstances probably exist.” R.C. 2901.22(B).

       {¶ 25} A person causes “serious physical harm” to another when he or she causes

“[a]ny physical harm that carries a substantial risk of death[.]” R.C. 2901.01(A)(5)(b).

Strangling a person to death constitutes the “serious physical harm” necessary to support

a charge of felonious assault, which in turn supports a charge for felony murder. See

State v. Winton, 2d Dist. Montgomery No. 27043, 2017-Ohio-6908, ¶ 37-38, 40-41; State

v. Ramey, 2d Dist. Montgomery No. 27636, 2018-Ohio-3072, ¶ 61 (Hall, J. concurring in

part and dissenting in part).

       {¶ 26} In this case, Mukes does not dispute the fact that his mother’s death was a

homicide by strangulation, which no doubt satisfies the “serious physical harm” element

of the underlying felonious assault. Mukes instead argues that the State failed to present

sufficient evidence establishing that he was his mother’s assailant. We disagree.

       {¶ 27} There was no dispute that Mukes resided with his mother, and the State

presented testimony and photographic evidence establishing that there was no forced

entry into their residence on the morning of the murder.       The State also presented

evidence of fresh injuries observed on Mukes’ body after the police arrived at the scene.

Specifically, Detective Roberts testified to observing fresh scratches on the right side of

Mukes’ neck and on the bridge of his nose. Photographs of the scratches were admitted

into evidence, along with photographs of other injuries on Mukes’ body, including a small

amount of blood on his right ear and a scratch on one of his ring fingers. See State’s

Exhibit Nos. 36-41. During their testimony, Detective Roberts and Officer Campbell

confirmed that these injuries were observed and photographed prior to Mukes’ physical
                                                                                          -11-


altercation with Officer Campbell and were therefore not a product of that altercation.

      {¶ 28} In addition to Mukes’ injuries, multiple witnesses testified that Mukes was

wearing a blood-stained t-shirt on the morning of the murder. The State’s forensic DNA

analyst testified that the DNA extracted from the bloodstains was predominately from

Mukes’ mother and partially from Mukes himself. The DNA analyst also testified that

there was blood on Mukes’ left shoe that belonged to his mother and that his mother’s

DNA was also found under Mukes’ fingernails. The DNA analyst further testified that

Mukes’ DNA was detected on the bedsheet that was wrapped around his mother’s neck.

Mukes also could not be excluded as a contributor to the DNA that was detected on his

mother’s neck.

      {¶ 29} Most significantly though, the DNA analyst testified that Mukes’ DNA was

detected underneath one of his mother’s right fingernails. During her testimony, the DNA

analyst explained that DNA does not appear underneath a fingernail after casual contact,

but instead from scratching or clawing another person, or in some instances sucking

another person’s finger. Therefore, because Mukes was observed with fresh scratches

on his body and his DNA was found underneath his mother’s fingernail, a rational juror

could have concluded that the fresh scratches on Mukes’ body were inflicted by his

mother on the morning of the murder.

      {¶ 30} Although Mukes argues that the aforementioned blood and DNA evidence

was the result of him attempting to give his mother CPR, the photographic evidence and

the testimony of Detective Roberts and the coroner establish that the bedsheet was still

wrapped tightly around Mukes’ mother’s neck and was obstructing her mouth when

officers arrived at the scene. See State’s Exhibit Nos. 4-6, 67-72. At trial, Mukes could
                                                                                         -12-


not credibly explain why he did not attempt to loosen the sheet around his mother’s neck

before he allegedly performed CPR on her. Mukes also could not credibly explain how

his mother’s blood got on the back of his t-shirt.

       {¶ 31} In addition to the DNA evidence and Mukes’ injuries, the State presented

evidence establishing that Mukes made multiple suspicious statements. For example,

Inez Harbour testified that she overheard Mukes’ say to himself “I wouldn’t hurt my mama.

I didn’t do nothing to my mama.” Trial Trans. p. 335. Sergeant Clinger also testified

that when he asked Mukes what was going on, Mukes responded by saying “she wouldn’t

let me leave last night.” Id. at 377.

       {¶ 32} With regard to the statement “she wouldn’t let me leave last night,” the State

presented evidence establishing that Mukes’ mother owned two cars, a Ford Taurus and

a Chevrolet Monte Carlo, and that Mukes drove the Monte Carlo while Hinesmon drove

the Taurus. The State also presented evidence establishing that three days before his

mother’s murder, Mukes had been in a car accident that did not result in any significant

physical injuries, but rendered the Monte Carlo inoperable.            During the murder

investigation, it was established that there was just one vehicle, Hinesmon’s Ford Taurus,

at the residence. Given this situation, and due to officers observing the keys to the

Taurus lying on the kitchen table on the morning of the murder, see State’s Exhibit Nos.

50-51, a rational factfinder could have inferred that Mukes’ statement “she wouldn’t let

me leave last night” was possibly in relation to his mother not letting him use her vehicle,

thus evidencing a motive for the attack.

       {¶ 33} The State also presented evidence establishing that Mukes engaged in

strange behavior after the police arrived at the scene. For example, the cruiser camera
                                                                                        -13-


video footage admitted into evidence shows Mukes banging his forehead against the

cruiser’s partition while he was sitting in the backseat. Mukes also resisted arrest at the

hospital by engaging in a physical altercation with Officer Campbell.       Prior to those

incidents, Mukes was also observed to be emotionless and calm in the wake of his

mother’s violent death.

       {¶ 34} Mukes was also inconsistent when explaining his whereabouts during the

hours leading up to his mother’s murder.       On the recorded 9-1-1 call, Mukes, who

admitted to having mobility issues and occasionally walking with a cane, told the

emergency responder that he had been out jogging when the attack happened. Then,

at trial, Mukes changed his story and testified that he had walked to a friend’s house

where he drank and played cards for a couple of hours before coming home and finding

his mother’s body. Notably, Mukes did not present any witnesses or evidence to confirm

that story.

       {¶ 35} When considered in a light most favorable to the State, all the foregoing

testimony and evidence could have led a rational juror to conclude that Mukes was the

individual who beat and strangled his mother to death. Therefore, based on the evidence

presented at trial, we find that Mukes’ conviction for felony murder and was supported by

sufficient evidence. Also, after reviewing the entire record, weighing the evidence and

all reasonable inferences, we do not find that the jury clearly lost its way and created a

manifest miscarriage of justice warranting the reversal of Mukes’ conviction.

Accordingly, we further find that Mukes’ conviction was not against the manifest weight

of the evidence.

       {¶ 36} Mukes’ sole assignment of error is overruled.
                                                                                       -14-




                                      Conclusion

       {¶ 37} Having overruled Mukes’ assignment of error, the judgment of the trial court

is affirmed.

                                     .............


DONOVAN, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Travis Kane
Hon. Mary Katherine Huffman
