[Cite as State v. Gatliff, 2013-Ohio-2862.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                              CLERMONT COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2012-06-045

                                                     :          OPINION
    - vs -                                                       7/1/2013
                                                     :

SHANNON BLAINE GATLIFF,                              :

        Defendant-Appellant.                         :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2012CR0020



D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Christine Y. Jones, 114 East 8th Street, Suite 400, Cincinnati, Ohio 45202, for defendant-
appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Shannon Blaine Gatliff, appeals his conviction in the

Clermont County Court of Common Pleas for felonious assault. For the reasons stated

below, we affirm his conviction.

        {¶ 2} On January 11, 2012, appellant was indicted for felonious assault. The charge

arose out of allegations that appellant assaulted Christina Freeman outside Christina's
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restaurant on December 24, 2011. A jury trial began on April 26, 2012, where several

witnesses testified regarding the events of that night.

       {¶ 3} The first witness to testify was Christina who explained that during the evening

of December 24, 2011, she was at her restaurant, the Backyard Inn Bar & Grill. Christina

had closed the restaurant early and invited a few of her family members and friends to come

by after the business shut down for the night. Around 10:00 p.m., appellant, his sister

(Amanda), and his brother-in-law came into the bar through a back entrance. Christina

stated that she had been in a relationship with appellant for the past several months and the

couple had broken up about ten days earlier. Christina told appellant to leave and followed

him to the back door to ensure that he left the property.

       {¶ 4} Christina testified that once outside the bar, Amanda became verbally abusive

towards her. The two women then got involved in a physical altercation. Christina stated

that the pair fell to the ground and "wrestled around." She explained that during the scuffle,

Amanda's hands were tangled in Christina's hair and Amanda was unable to hit her. After

Amanda released Christina's hair, appellant jumped on top of Christina, and repeatedly

struck her in the face with his fist. Christina stated that he hit her in the mouth, her right eye,

and on the right side of her face. Eventually, appellant stopped hitting her and she was able

to get up. As Christina was walking back to the bar, Amanda pulled her hair and she fell to

the ground on her right elbow. As a result of the fight, Christina suffered a fractured orbital

floor of the right eye, loosened teeth, and lip, cheek, and elbow injuries. Christina testified

that she had reconstructive surgery on her right eye and experiences double vision.

       {¶ 5} During Christina's testimony, the restaurant's surveillance video was shown.

Christina explained that she has a surveillance video system throughout her restaurant and

after the fight, police obtained the video recording of the restaurant that captured the fight.

The police did not obtain the video of the interior of the restaurant. The video was in black
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and white, had no audio, and showed only what occurred outside of the restaurant. The

video captured the initial argument between Christina and Amanda as well as the ensuing

physical altercation between Christina and Amanda.

       {¶ 6} The next witness to testify was Christina's mother who explained that she was

at the restaurant on December 24, 2011. She stated that initially, a fight broke out between

Amanda and Christina. During the fight, the women fell to the ground and both girls had their

hands in the other's hair. Appellant then came over and struck Christina in the mouth.

Christina's mother testified that one of appellant's hands was on Christina's throat while the

other hand was hitting her face. Ultimately, Christina's mother called 911 and the 911

recording was introduced at trial where Christina's mother stated that appellant had beat up

her daughter.

       {¶ 7} The state also had other witnesses who testified that they observed the fight

between Christina and appellant and some of them admitted consuming alcohol prior to the

altercation. All the witnesses stated that appellant struck Christina and caused all her injuries

except the elbow injury. The witnesses agreed that the fight between Christina and Amanda

did not cause any of Christina's injuries because the women only had their hands in each

other's hair.

       {¶ 8} Finally, the state presented the testimony of a jail inmate who was located in

the same section of the jail as appellant and also had criminal charges pending. The inmate

stated that appellant revealed that he knew where the cameras were located at Christina's

restaurant and admitted to assaulting her. Specifically, appellant stated that he "pound[ed]"

Christina's face "a couple times into the ground."

       {¶ 9} Defense counsel presented the testimony of Amanda and appellant's brother-

in-law, who denied that appellant caused the injuries to Christina. Appellant's brother-in-law

stated that Christina started the fight when she pushed appellant. He explained that
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Christina "bull rushed" Amanda into the truck and they both struck the vehicle very hard.

Amanda agreed that they hit a truck before the pair fell to the ground and that she was

kicking towards Christina during the fight to free herself. She stated that during the struggle

she kicked and punched Christina in the face. Both Amanda and appellant's brother-in-law

testified that appellant was trying to protect Christina when he fell into the pile. Additionally,

they agreed that appellant never punched Christina.

       {¶ 10} Lastly, appellant testified in his own defense and denied causing any of the

injuries to Christina. Appellant stated that he and Christina were in a relationship, had lived

together, and had broken up shortly before the alleged assault. Appellant received a text

message from Christina requesting that he retrieve his clothes from her home. In response

to this text, he went to Christina's restaurant on December 24 to make arrangements to get

his belongings. Upon arriving at the bar, appellant stated that Christina was intoxicated.

According to appellant, a verbal altercation ensued as he was leaving the bar between

Christina and Amanda, and at some point Christina kicked appellant. Christina and Amanda

started fighting and Amanda kicked Christina in the mouth. He stated that he tried to break

up the fight between Christina and Amanda but tripped and fell down to the ground.

Appellant then got entangled in the fight between Christina and Amanda but denied that he

ever choked or hurt Christina.

       {¶ 11} At the conclusion of the trial, the jury found appellant guilty as charged. On

May 10, 2012, the trial court held a telephone conference with counsel, where the court

informed counsel that the court's bailiff received information that one of the jurors might have

watched a "YouTube" video of the altercation during the trial. Subsequently, defense

counsel filed a motion for a new trial and an evidentiary hearing. The court held a hearing

regarding the motion for a new trial and ultimately denied both of defendant's motions. On

June 22, 2012, appellant was sentenced to seven years imprisonment.

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       {¶ 12} Appellant now appeals, asserting eight assignments of error.

       {¶ 13} Assignment of Error No. 1:

       {¶ 14} THE JURY ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT

BY FINDING HIM GUILTY OF FELONIOUS ASSAULT, AS THOSE FINDINGS WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶ 15} Assignment of Error No. 2:

       {¶ 16} THE JURY ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT

BY FINDING HIM GUILTY OF FELONIOUS ASSAULT, AS THOSE FINDINGS WERE

CONTRARY TO LAW.

       {¶ 17} Assignment of Error No. 3:

       {¶ 18} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-

APPELLANT BY OVERRULING HIS MOTION FOR ACQUITTAL UNDER OHIO CRIMINAL

PROCEDURE RULE 29.

       {¶ 19} Appellant argues that there was insufficient evidence to support his conviction,

his conviction is against the manifest weight of the evidence, and the trial court erred in

overruling his Crim.R. 29 motions for acquittal. Specifically, appellant argues his conviction is

in error because the witnesses' testimony was contradictory as to his involvement in the fight

and the evidence established that his sister was the primary person engaged in the fight.

       {¶ 20} Crim.R. 29(A) provides, "[t]he court on motion of the defendant or on its own

motion, after the evidence on either side is closed, shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or

offenses." A Crim.R. 29(A) motion tests the sufficiency of the evidence. State v. Stutz, 12th

Dist. No. CA2010-06-013, 2011-Ohio-3517, ¶ 11. An appellate court reviews the denial of a

Crim.R. 29 motion under the same standard used for reviewing a sufficiency of the evidence

claim. State v. Clements, 12th Dist. No. CA2009-11-277, 2010-Ohio-4801, ¶ 17. See also
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State v. Carter, 72 Ohio St.3d 545, 553 (1995).

         {¶ 21} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing

the sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist.

No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he 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."

Id.

         {¶ 22} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. No. CA2011-09-177, 2012-

Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of the

evidence, the reviewing court must look at the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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. Graham, 12th Dist. No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the

evidence, an appellate court must be mindful that the jury, as the original trier of fact, was in

the best position to judge the credibility of witnesses and determine the weight to be given to

the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th

Dist.)

         {¶ 23} "Because sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of
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sufficiency."    State v. Hart, 12th Dist. No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.

Accordingly, a determination that a conviction is supported by the weight of the evidence will

also be dispositive of the issue of sufficiency. Id.

       {¶ 24} Appellant was charged and convicted of felonious assault in violation of R.C.

2903.11(A)(1), a felony in the second degree. Pursuant to R.C. 2903.11(A)(1), "[n]o person

shall knowingly * * * [c]ause serious physical harm to another or to another's unborn." "A

person acts knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature * * *." R.C. 2901.22(B).

Serious physical harm includes,

                (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 or
                prolonged or intractable pain.

R.C. 2901.01(A)(5).

       {¶ 25} We find that the greater inclination of the evidence supports appellant's

felonious assault conviction. The state produced ample evidence that appellant knowingly

caused physical harm to Christina. Christina and five other eyewitnesses testified that

appellant punched Christina in the face. Specifically, Christina stated that appellant punched

her multiple times in the mouth, the eye, and on the side of her face. Christina and the

eyewitnesses all consistently denied that Amanda caused Christina's injuries explaining that

Amanda only had her hands in Christina's hair. The state also produced the testimony of a

man who was in jail with appellant. The man stated that appellant "bragged" to him that he
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had "got on top of Christina and pounded her face a couple times into the ground."

       {¶ 26} The evidence also established that the injuries Christina suffered qualified as

"serious physical harm." Christina testified that as a result of the assault she suffered a

fractured orbital floor of the right eye, her teeth were loose, her lip was spilt open, and her

cheek was bruised and severely swollen.           The state introduced medical records and

photographs taken of Christina after the assault that corroborated her testimony regarding

her injuries. The photographs showed severe bruising of Christina's right eye and numerous

other bruises on Christina's body.       Christina also explained that she had to undergo

reconstructive surgery in order to repair the orbital fracture and noted that she suffers from

double vision in that eye. An emergency room physician who treated Christina also testified

that Christina's orbital fracture was a "significant injury." He stated that the concerns with this

kind of injury are brain damage, the loss of the ability to move the eye, and double vision.

       {¶ 27} Appellant contends that his conviction was in error because there was

contradictory testimony regarding his and Amanda's involvement in the fight. Appellant

argues the jury lost its way because it did not consider the defense witnesses' testimony who

explained that Christina's injuries were caused by her fall and her fight with Amanda.

However, simply because the testimony at trial was contradictory does not make a conviction

against the manifest weight of the evidence. It was for the jury to determine whether all, part,

or none of the defense witnesses' testimony was credible as it was in the best position to

observe the witnesses' demeanor. State v. Mays, 12th Dist. CA2012-05-038, 2013-Ohio-

1952, ¶ 27. The jury's decision to find the state's witnesses credible does not render the

verdict against the manifest weight of the evidence. State v. Birt, 12th Dist. No. CA2012-02-

031, 2013-Ohio-1379, ¶ 47.

       {¶ 28} Given the evidence presented, the jury clearly did not lose its way and create

such a manifest miscarriage of justice such that the conviction must be reversed and a new
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trial ordered. As appellant's felonious assault conviction was not against the manifest weight

of the evidence, we necessarily conclude that the state presented sufficient evidence to

support the jury's finding of guilt and to overcome appellant's Crim.R. 29(A) motion.

Accordingly, appellant's first, second, and third assignments of error are overruled.

       {¶ 29} Assignment of Error No. 4:

       {¶ 30} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY IMPOSING A SENTENCE THAT IS AN ABUSE OF DISCRETION.

       {¶ 31} Appellant argues the trial court abused its discretion when it sentenced him to

seven years of imprisonment. He maintains his sentence was excessive because he did not

start the altercation and after it started, he was merely a minimal participant in the fight.

       {¶ 32} Appellate courts apply a two-step procedure when reviewing felony sentences.

First, courts must examine the sentencing court's compliance with all applicable rules and

statutes in imposing the sentence to determine whether the sentence is clearly and

convincingly contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 26. If

this first prong is satisfied, then the sentencing court's decision is reviewed for an abuse of

discretion. Id. An abuse of discretion "connotes more than an error of law or of judgment; it

implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v.

Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181.

       {¶ 33} In applying the first prong under Kalish, a sentence is not clearly and

convincingly contrary to law where the trial court considers the purposes and principles of

sentencing under R.C. 2929.11 as well as the seriousness and recidivism factors listed in

R.C. 2929.12, properly applies postrelease control, and sentences a defendant within the

permissible statutory range. Kalish at ¶ 18; State v. Rose, 12th Dist. No. CA2011-11-241,

2012-Ohio-5607, ¶ 78. The trial court has discretion in determining whether the sentence

satisfies the overriding purpose of Ohio's sentencing structure and is not required to engage
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in any factual findings under R.C. 2929.11 or R.C. 2929.12. Rose at ¶ 78.

       {¶ 34} Upon review of the record, we find that appellant's sentence is not contrary to

law. The trial court stated it considered the purposes and principles of sentencing under R.C.

2929.11 and balanced the seriousness and recidivism factors listed in R.C. 2929.12. The

trial court also sentenced appellant within the applicable statutory range. Appellant was

convicted of felonious assault in violation of R.C. 2903.11(A)(1), a felony in the second

degree. R.C. 2903.11(D)(1)(a). According to R.C. 2929.14(A)(2), the sentence for a felony

of the second degree shall be between two and eight years. Therefore, appellant's sentence

of seven years was within the applicable range. Lastly, the trial court properly applied

postrelease control.

       {¶ 35} We further find that the trial court did not abuse its discretion in sentencing

appellant to seven years in prison. The trial court considered the presentence investigation

report as well as appellant's lack of remorse. The court noted that while appellant does not

have a long criminal record, the crimes he has committed are serious offenses. The court

also noted that appellant received multiple misconduct reports while in prison. Therefore, the

court found that due to these factors, appellant's chances of recidivism are more likely.

Thus, in light of the facts of this case, the court did not abuse its discretion in imposing a

seven year prison term.

       {¶ 36} Appellant's fourth assignment of error is overruled.

       {¶ 37} Assignment of Error No. 5:

       {¶ 38} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY NOT GRANTING HIS REQUEST FOR EVIDENCE.

       {¶ 39} Appellant argues his due process rights were violated when the state failed to

preserve the surveillance video of the interior of the bar. Appellant alleges this recording

contained exculpatory evidence regarding the actions of appellant and the witnesses prior to
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the altercation. Appellant also maintains that this evidence was at least potentially useful and

it was destroyed in bad faith.

        {¶ 40} Depending on the nature of the evidence, different tests are applied to

determine whether the state's failure to preserve evidence amounts to the level of a due

process violation. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 73-77. The

state's failure to preserve "materially exculpatory" evidence, regardless of whether such

failure was done in good faith or bad faith, violates due process. California v. Trombetta, 467

U.S. 479, 489, 104 S.Ct. 2528 (1984).         Evidence is constitutionally material when it

possesses "an exculpatory value that was apparent before the evidence was destroyed, and

[is] of such a nature that the defendant would be unable to obtain comparable evidence by

other reasonably available means."       Powell at ¶ 74, quoting Trombetta at 489. The

defendant bears the burden to show that the evidence was materially exculpatory. Powell at

¶ 74. See State v. Powers, 12th Dist. No. CA2004-12-110, 2005-Ohio-4340, ¶ 15 (noting

that burden shifts to state when defendant requests preservation of evidence prior to

evidence's destruction).

        {¶ 41} However, a different rule is used when the evidence is merely "potentially

useful." State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239 at ¶ 9-10. "Unless a criminal

defendant can show bad faith on the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488

U.S. 51, 58, 109 S.Ct. 333 (1988). Bad faith implies more than bad judgment or negligence,

rather "[i]t imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a

known duty through some ulterior motive or ill will partaking of the nature of fraud." Powell at

¶ 81.

        {¶ 42} We find that appellant's due process rights were not violated when the state

failed to preserve the surveillance video of the interior of the bar. We begin by noting that
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appellant has the burden to prove the evidence is materially exculpatory as his discovery

demand occurred after the video was erased pursuant to the surveillance system's normal

procedures. Appellant has failed to establish the video would be materially exculpatory. It is

undisputed that the altercation occurred completely outside. Therefore, the interior video

would not provide any evidence regarding what took place during the fight. Additionally, the

video would not provide materially exculpatory information regarding the parties' actions prior

to the fight. Appellant's time inside the restaurant was brief and all the witnesses testified

regarding what occurred inside the restaurant. Additionally, the surveillance video would not

provide any information as to the conversations before the fight as the video did not record

any audio.

       {¶ 43} Because the video did not provide any materially exculpatory evidence, our

inquiry turns to whether it would be potentially useful and whether the video was destroyed in

bad faith. Even assuming that a video of the interior of the bar prior to the fight would be

potentially useful, appellant has failed to point to any evidence to show how it was destroyed

in bad faith. Instead, the evidence showed that the surveillance video was taped over in the

normal course of business. The state preserved the video that contained images of the fight.

Appellant's assertions that the video was destroyed in bad faith are solely speculative. Thus,

we find the trial court did not err by denying his request to preserve the evidence.

       {¶ 44} Appellant's fifth assignment of error is overruled.

       {¶ 45} Assignment of Error No. 6:

       {¶ 46} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY NOT INCLUDING A LESSER INCLUDED JURY INSTRUCTION.

       {¶ 47} Appellant challenges the trial court's jury instructions. At trial, the court refused

to instruct the jury on assault with the mens rea of recklessness. Instead, the court instructed

the jury regarding felonious assault and assault with the mens rea of knowingly. Appellant
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asserts the court's refusal to instruct the jury regarding reckless assault was in error because

the jury could have found that he did not knowingly cause the injuries to Christina but instead

injured her inadvertently.

       {¶ 48} The jury was instructed on and appellant was convicted of felonious assault, in

violation of R.C. 2903.11(A)(1).      Pursuant to R.C. 2903.11(A)(1), "[n]o person shall

knowingly * * * cause serious physical harm to another or to another's unborn." (Emphasis

added.) However, the court refused to instruct the jury regarding reckless assault in

violation of R.C. 2903.13(B), which provides, "[n]o person shall recklessly cause serious

physical harm to another or to another's unborn." (Emphasis added.) The distinction

between felonious assault and reckless assault is the mental state.             A person acts

knowingly, when, regardless of his purpose, "he is aware that his conduct will probably

cause a certain result or will probably be of a certain nature * * *." R.C. 2901.22(B).

However, recklessly is defined as a person acting "with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to cause a

certain result * * *." Id. at (C).

       {¶ 49} Jury instructions are matters left to the sound discretion of the trial court. State

v. Guster, 66 Ohio St.2d 266, 271 (1981). Therefore, this court reviews the trial court's

decision refusing to provide the jury with a requested jury instruction for an abuse of

discretion. State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion implies that

the court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error

of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.

       {¶ 50} A jury instruction on a lesser-included offense is required only where the

evidence presented at trial would reasonably support both an acquittal on the crime charged

and a conviction on the lesser-included offense. State v. Carroll, 12th Dist. Nos. CA2007-02-

030, CA2007-03-041, 2007-Ohio-7075, ¶ 136, citing State v. Carter, 89 Ohio St.3d 593, 600
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(2000). However, an instruction is not warranted simply because the defendant offers "some

evidence" to establish the lesser-included offense. State v. Shane, 63 Ohio St.3d 630, 632-

633 (1992). Instead, there must be "sufficient evidence" to "allow a jury to reasonably reject

the greater offense and find the defendant guilty on a lesser included offense." (Emphasis

sic.) State v. Anderson, 12th Dist. No. CA2005-06-156, 2006-Ohio-2714, ¶ 11, quoting

Shane at 632-633. In making this determination, the trial court must consider the evidence in

a light most favorable to the defendant. State v. Smith, 89 Ohio St.3d 323, 331 (2000).

       {¶ 51} Reckless assault, in violation of R.C. 2903.13(B), is a lesser included offense of

felonious assault in violation of R.C. 2903.11(A)(1). State v. Vera, 8th Dist. No. 79367, 2002

WL 363648, *6 (Mar. 7, 2002); State v. Turks, 3d Dist. Nos. 1-10-02, 1-10-26, 2010-Ohio-

5944, ¶ 26; State v. Krug, 11th Dist. No. 2008-L-085, 2009-Ohio-3815, ¶ 95. Therefore, our

inquiry turns on whether there was sufficient evidence presented at trial that reasonably

supports an acquittal on felonious assault and a conviction on reckless assault.

       {¶ 52} The evidence at trial did not reasonably support both an acquittal on felonious

assault and a conviction on reckless assault. At trial, appellant's defense was that he did not

hit Christina or cause any of her injuries. Appellant testified that the injuries were a result of

the fight between Christina and appellant's sister. Appellant explained that he attempted to

break up the fight but he did not hurt Christina in any way. Appellant's sister also testified

that she and Christina got into a fight and appellant was attempting to protect her. On the

other hand, the witnesses for the state all testified that appellant deliberately caused

Christina's injuries. Therefore, there was no evidence at trial to support the inference that

appellant merely "recklessly" caused Christina's injuries.         Instead, the evidence only

supported either the conclusion that appellant "knowingly" caused Christina's injuries or that

he did not injure her at all. Thus, the trial court did not err in refusing to instruct the jury

regarding reckless assault, committed in violation of R.C. 2903.13(B).
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       {¶ 53} Appellant's sixth assignment of error is overruled.

       {¶ 54} Assignment of Error No. 7:

       {¶ 55} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT BY NOT ALLOWING EVIDENCE TO BE ADMITTED.

       {¶ 56} Appellant argues the trial court erred when it did not allow testimony regarding

Christina's alleged involvement in an arson. Appellant maintains that this testimony provides

a possible motive to prove that Christina falsely accused appellant of assaulting her.

Appellant also maintains that the court erred when it refused to admit still photographs taken

from the surveillance video of Christina's restaurant.

       {¶ 57} The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court. State v. Lee, 191 Ohio App.3d 219, 2010-Ohio-6276 (12th Dist.),

¶ 23, citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. An

appellate court will not disturb evidentiary rulings absent an abuse of discretion that produced

a material prejudice to the aggrieved party. Lee at ¶ 23. An abuse of discretion is more than

an error of judgment; it means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181.

       {¶ 58} It is well-established that evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that a person acted in

conformity therewith on a particular occasion. Evid.R. 404(B); State v. Ford, 12th Dist. No.

CA2009-01-039, 2009-Ohio-6046 ¶ 37. Such evidence may be used for other purposes,

however, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident. Evid.R. 404(B); Ford at ¶ 37. Nevertheless, even if the

evidence meets the prerequisites of Evid.R. 404(B), it may still be excluded under Evid.R.

403(A) if its probative value is substantially outweighed by the danger of unfair prejudice,

confusing the issues, or misleading the jury. State v. Hart, 12th Dist. No. CA2008-06-079,
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2009-Ohio-997, ¶ 11.       Further, a court also has the discretion to exclude otherwise

admissible evidence, if the probative value is substantially outweighed by "needless

presentation of cumulative evidence." Evid.R. 403(B).

       {¶ 59} "Evid.R. 403(A) speaks in terms of unfair prejudice. Logically, all evidence

presented by a prosecutor is prejudicial, but not all evidence unfairly prejudices a defendant.

It is only the latter that Evid.R. 403 prohibits." State v. Martin, 12th Dist. No. CA2007-01-022,

2007-Ohio-7073, ¶ 16, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 107.

Unfairly prejudicial evidence is that which might result in an improper basis for a jury decision.

State v. Bowman, 144 Ohio App.3d 179, 186 (12th Dist.2001).

       {¶ 60} We begin by discussing whether the trial court erred in prohibiting evidence of a

possible arson investigation against Christina. At trial, defense counsel elicited the following

evidence. Appellant testified that earlier in the year the cabin of his best friend, Tim, burned

down in a fire. Appellant explained that on the day the fire occurred, Christina told appellant

that her best friend had burned down the cabin. Christina also reportedly told appellant that

she jokingly told her best friend to burn down the cabin. Appellant testified that later that

night, Christina's best friend came over and confessed that she was involved in the arson.

Two months later, appellant informed Tim what he heard about who was involved in the

arson. Shortly thereafter, appellant met with the State Fire Marshall to discuss the arson.

Appellant stated that once Christina found out he was meeting with the Fire Marshall, she

broke up with him and kicked him out of the house. This occurred ten days before Christina's

alleged assault.

       {¶ 61} We find that the trial court did not abuse its discretion by refusing to admit

evidence regarding Christina's alleged involvement in the arson. Assuming, arguendo, that

such evidence of Christina's past wrong was admissible to prove a motive to falsely accuse

appellant of felonious assault; we find that any probative value was substantially outweighed
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by the dangers listed in Evid.R. 403(A), and the evidence was therefore inadmissible. The

probative value of this evidence was low as appellant's evidence regarding Christina's

involvement in the arson is merely speculative. There was no evidence that Christina has

been charged or convicted for her involvement in the alleged arson. See State v. Buchanan,

12th Dist. No. CA2008-04-001, 2009-Ohio-6042, ¶ 57. Further, no party who was allegedly

involved in the arson had anything to do with the present charge against appellant. The

evidence's probative value is also weakened in light of the diminished role that Christina's

credibility played at trial. At trial, the state not only presented Christina's testimony but also

presented five other eyewitnesses, a surveillance video, testimony of a jail inmate, and

several photographs of Christina's injuries.

       {¶ 62} On the other hand, the prejudicial effect of this testimony is great as this

evidence could confuse the jury as to the issues involved in the present case. Additionally,

the jury could use this evidence as improper character evidence, inferring that Christina is a

bad person and must be punished rather than conducting an objective evaluation of the

operative facts. Accordingly, we find the trial court did not abuse its discretion in refusing to

admit evidence regarding Christina's involvement in the arson.

       {¶ 63} We also find that the court did not abuse its discretion in refusing to admit the

still photographs taken from the surveillance video. At trial, defense counsel sought to

introduce several still photographs of the incident. These photographs were taken from the

surveillance video that was admitted into evidence. In refusing to admit these photographs,

the court reasoned that the photographs would not be helpful to the jury as the photos were

taken directly from the surveillance video. The jury had access to the surveillance video

during its deliberations and was able to stop the video and observe a single scene of the

video. Additionally, the court reasoned that the still photographs might have distorted the

images as compared to the video.
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       {¶ 64} We agree with the trial court that the probative value of the still photos is slight

as the jury already had access to the surveillance footage. The still photos were cumulative

to the evidence already admitted at trial. Accordingly, we find that the court did not abuse its

discretion in refusing to admit the still photos.

       {¶ 65} Appellant's seventh assignment of error is overruled.

       {¶ 66} Assignment of Error No. 8:

       {¶ 67} DEFENDANT-APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS BY

THE MISCONDUCT OF THE JURY AND HIS MOTION FOR A NEW TRIAL AND/OR

EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

       {¶ 68} Appellant argues the court erred by denying his motion for a new trial based on

juror misconduct, or at least, erred by denying his motion without holding an evidentiary

hearing. Specifically, appellant maintains that a member of the jury conducted an improper

independent inquiry when that juror was aware of and most likely viewed a video of the

altercation on the internet.

       {¶ 69} A new trial may be granted on motion of a criminal defendant due to juror

misconduct that materially affects the defendant's substantial rights. Crim.R. 33(A)(2). A

motion for a new trial based on juror misconduct must be supported by an affidavit showing

the truth of the allegation. Crim.R. 33(C). The decisions whether to grant a motion for a new

trial or hold an evidentiary hearing on the motion are committed to the trial court's sound

discretion, and the trial court's decision will not be reversed absent an abuse of discretion,

i.e., the decision is arbitrary, unconscionable or unreasonable. State v. Brakeall, 12th Dist.

No. CA2008-06-022, 2009-Ohio-3542, ¶ 9, citing State v. Hessler, 90 Ohio St.3d 108, 122-

124 (2000).

       {¶ 70} When considering the evidence regarding a motion for a new trial due to juror

misconduct, the court is constrained by Evid.R. 606(B). Evid.R. 606(B), which embodies the
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"aliunde rule," governs the competency of a juror to testify at subsequent proceedings

concerning the original verdict. Hessler at 123. The rule provides,

                Upon an inquiry into the validity of a verdict or indictment, a juror
                may not testify as to any matter or statement occurring during
                the course of the jury's deliberations or to the effect of anything
                upon that or any other juror's mind or emotions as influencing
                the juror to assent to or dissent from the verdict or indictment or
                concerning the juror's mental processes in connection therewith.
                A juror may testify on the question whether extraneous
                prejudicial information was improperly brought to the jury's
                attention or whether any outside influence was improperly
                brought to bear on any juror, only after some outside evidence of
                that act or event has been presented. However a juror may
                testify without the presentation of any outside evidence
                concerning any threat, any bribe, any attempted threat or bribe,
                or any improprieties of any officer of the court. A juror's affidavit
                or evidence of any statement by the juror concerning a matter
                about which the juror would be precluded from testifying will not
                be received for these purposes.

(Emphasis added.) Evid.R. 606(B).

          {¶ 71} In State v. Schiebel, 55 Ohio St.3d 71, 75 (1990), the Supreme Court explained

that "[i]n order to permit juror testimony to impeach the verdict [pursuant to Evid.R. 606(B)], a

foundation of extraneous, independent evidence [i.e. evidence aliunde] must first be

established." The Court noted that "[t]his foundation must consist of information from

sources other than the jurors themselves and the information must be from a source which

possesses firsthand knowledge of the improper conduct." (Citation omitted.) Id. Therefore,

a juror's affidavit alleging misconduct of another juror may not be considered without

evidence aliunde being introduced first. Id. Additionally, "where an attorney is told by a juror

about another juror's possible misconduct, the attorney's testimony is incompetent and may

not be received for the purposes of impeaching the verdict or for laying a foundation of

evidence aliunde." Id. See Brakeall at ¶ 19-20 (reasoning that defense counsel's affidavit of

juror misconduct not proper Evid.R. 606(B) evidence when information ultimately came from

juror).

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       {¶ 72} "The purpose of the aliunde rule is to maintain the sanctity of the jury room and

the deliberations therein. The rule is designed to ensure the finality of jury verdicts and to

protect jurors from being harassed by defeated parties." Hessler at 123. Therefore, when

there is no evidence of juror misconduct that is offered from sources other than jurors

themselves, a trial court does not abuse its discretion in failing to hold an evidentiary hearing

or granting a new trial. Brakeall at ¶ 19-20; Hessler at 123.

       {¶ 73} In the present case, appellant attached two affidavits to his motion for a new

trial. One of the affidavits was from Juror No. 9 who served as part of the jury during

appellant's trial. Juror No. 9 averred that she was told by Juror No. 10 that his daughter

informed him that the surveillance video of the fight was on YouTube. Juror No. 9 did not

state whether Juror No. 10 saw this video. The second affidavit was from appellant's counsel

who averred that he was made aware that Juror No. 9 alleged that another member of the

jury had watched a YouTube video of the fight. In his affidavit, he explained that the bailiff

heard from Juror No. 9 that a member of the jury might have watched a YouTube video of the

fight. Additionally, attached to appellant's counsel affidavit was a printout from the YouTube

website of two scenes of the fight. The printouts show that on May 1, 2012, the second day

of trial, someone "googled" appellant's name and was directed to the video. On May 1, 2012,

the first video was viewed 15 times while the second video was viewed five times.

       {¶ 74} We find that the trial court did not abuse its discretion in denying appellant's

motion for a new trial and refusing to grant an evidentiary hearing as appellant failed to

present evidence of the alleged juror misconduct. Appellant presented three pieces of

evidence to support his motion for a new trial. One of the pieces of evidence, the YouTube

printouts, did constitute outside evidence. However, the printouts merely show that the two

fight scenes were viewed on the second day of trial; the printouts do not contain any

information to connect these viewings to any member of the jury. Therefore, these printouts
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did not constitute sufficient evidence to demonstrate juror misconduct.

       {¶ 75} Additionally, the other two remaining pieces of evidence did not demonstrate

juror misconduct as appellant did not lay the requisite foundation for the introduction of any

testimony from a member of the jury regarding alleged juror misconduct. The affidavits from

Juror No. 9 and appellant's counsel were not based on outside evidence. Instead, both

affidavits contained information that ultimately came from a juror. Therefore, these affidavits

were not evidence aliunde of the alleged juror misconduct. Additionally, as the YouTube

printout did not demonstrate evidence of juror misconduct, it could not constitute evidence

aliunde necessary to introduce the affidavits.

       {¶ 76} Lastly, we note that even if the affidavits were admissible, appellant has not

demonstrated that he suffered prejudice. The affidavit of Juror No. 9 merely stated that Juror

No. 10 was aware that the video was posted on YouTube. Appellant presented no evidence

that any juror watched this video. It is a "long standing" rule that a judgment will not be

reversed based upon juror misconduct unless prejudice to the complaining party is shown;

prejudice will not be presumed. State v. Doan, 12th Dist. No. CA2001-09-030, 2002-Ohio-

3351, ¶ 45, citing State v. Keith, 79 Ohio St.3d 514, 526 (1997).

       {¶ 77} Thus, the trial court did not err when it denied appellant's motion for a new trial

on the ground of juror misconduct, since appellant did not produce evidence of the alleged

misconduct. Also, the trial court did not abuse its discretion under the circumstances of this

case by denying appellant's motion without holding an evidentiary hearing.

       {¶ 78} Appellant's eighth assignment of error is overruled.

       {¶ 79} Judgment affirmed.


       S. POWELL and M. POWELL, JJ., concur.




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