[Cite as State v. Pearson, 2017-Ohio-8396.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                  :      Hon. Craig R. Baldwin, J.
                                              :      Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
TYREE PEARSON                                 :      Case No. 2017CA00013
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No.
                                                     2016CR1775




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    October 30, 2017



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      JACOB T. WILL
Prosecuting Attorney                                 116 Cleveland Ave NW, Suite 808
                                                     Canton, Ohio 44702
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017CA00013                                                 2

Baldwin, J.

      {¶1}    Appellant Tyree Pearson appeals from the December 22, 2016 Judgment

Entry of the Stark County Court of Common Pleas. Appellant was found guilty of one

count of Felonious Assault and one Count of Domestic Violence and sentenced to an

aggregate term of five years. Appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}    This case arose on September 12, 2016, when Appellant confronted

Antoinette Law near the 12th Street Market in Canton, Stark County, Ohio and struck her

with a piece of pavement.

      {¶3}    Antoinette Law and Appellant had known each other for approximately

seven years prior to the assault. They had lived together for a short time and the

relationship ended less than two months prior to September 12, 2016.

      {¶4}    On September 12, 2016 Ms. Law walked to the 12th Street Market and saw

Appellant in an alley, but they did not speak. While in the Market she noticed Appellant

outside the Market and when she left, he was shouting and threatening someone in the

Market. Ms. Law attempted to calm Appellant, but she was unsuccessful and decided to

leave the scene. Appellant began to shout at her as she walked away. As she walked

from Appellant, Ms. Law saw him pick up a piece of the asphalt pavement. He struck her

on the right ear with the piece of pavement and she fell to the ground. Ms. Law’s memory

is not clear regarding the events immediately after she was struck, but she recalls voices,

people near her and someone telling Appellant to move away from her. She was able to

stand and walk to a Circle K and call 911. The Canton Police Department and the Medical

Squad responded to the scene.
Stark County, Case No. 2017CA00013                                                3


      {¶5}   Ms. Law was transported to Aultman hospital where she was treated for a

laceration to her right ear and scalp as well as a concussion. The treating physician

placed fifteen sutures and five staples in her ear and scalp to treat the wounds. Ms. Law

was discharged from the hospital and had no further treatment. Her wounds have healed

but she has scars in her scalp and right ear.

      {¶6}   On, November 1, 2016, the Stark County Grand Jury indicted Mr. Tyree

Pearson on one count of Felonious Assault (R.C. 2903.11(A) (1) and/or (A) (2)), alleging

that on September 12, 2016, Appellant did knowingly cause serious physical harm to Ms.

Antoinette Law and/or did cause or attempt to cause physical harm to Ms. Antoinette Law

by means of a deadly weapon or dangerous ordnance. Appellant was also indicted on

one count of Domestic Violence (R.C. 2919.25(A)) based on the same set of facts with

the allegation that Appellant had previously pleaded guilty to or had been convicted of

two or more violations of Domestic Violence.

      {¶7}   Appellant entered pleas of not guilty and the matter proceeded to trial by

jury. The State offered the testimony of Ms. Law and the arresting Officer, Michael

Herrera. Ms. Law confirmed that the Appellant struck her with a piece of pavement. The

state offered the testimony of Samuel Hoefler, an eye witness who confirmed that

Appellant struck Ms. Law with a piece of pavement and that she fell to the ground. Mr.

Heffler and Officer Herrera identified Exhibit 2 as the piece of pavement used in the

assault.

      {¶8}   The State offered Appellant’s two prior convictions for domestic violence

(RC 2919.25), the piece of pavement used in the assault, three photographs of the
Stark County, Case No. 2017CA00013                                                  4


wounds and the medical records regarding Ms. Law’s treatment as exhibits, and without

objection by Defendant, the exhibits were accepted into evidence.

       {¶9}   After consultation with his counsel, Appellant testified on his own behalf at

trial and presented no additional evidence. Appellant admitted that he was at the 12th

Street Market on September 12, 2016 trying to start a fight with someone in the Market

with the intent to entice them to come into the alley. He acknowledged that he had known

Ms. Law for several years, had lived with her for a short time and that the relationship

ended weeks prior to September 12, 2016. He denies seeing her at the Market and

specifically denied striking her.

       {¶10} Upon cross-examination Appellant admitted the two prior domestic violence

convictions as well as felony convictions for receiving stolen property, possession of

cocaine and theft convictions in 2012 and 2013.

       {¶11} The jury found Appellant guilty of felonious assault and domestic violence.

The trial court sentenced Appellant to a prison term of five years for the felonious assault

and thirty six months for the domestic violence, to be served concurrently

       {¶12} Appellant now appeals from the judgment entries of conviction and

sentence.

       {¶13} Appellant raised one assignment of error.

       {¶14} I. APPELLANT'S CONVICTIONS WERE AGAINST THE SUFFICIENCY

AND MANIFEST WEIGHT OF THE EVIDENCE.

       {¶15} In his sole assignment of error, Appellant argues his conviction is against

the manifest weight and sufficiency of the evidence.
Stark County, Case No. 2017CA00013                                                     5


      {¶16} The standard of review for a challenge to the sufficiency of the evidence is

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

the syllabus, in which the Ohio Supreme Court held as follows:

             An appellate court's function when reviewing the sufficiency of the

      evidence to support a criminal conviction is to examine 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.

      {¶17} Pearson was convicted of Felonious Assault and Domestic Violence. To

find Pearson guilty of felonious assault, the jury must find that Appellant did knowingly

cause serious physical harm to Ms. Antoinette Law and/or did cause or attempt to cause

physical harm to Ms. Law by means of a deadly weapon or dangerous ordinance. (R.C.

2903.11(A) (1) and/or (A) (2))

      {¶18} Ohio Revised Code Section 2901.22(B) provides the definition of how and

when a person acts knowingly:

             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 person has knowledge of circumstances

      when the person is aware that such circumstances probably exist. When

      knowledge of the existence of a particular fact is an element of an offense,

      such knowledge is established if a person subjectively believes that there is
Stark County, Case No. 2017CA00013                                                 6


       a high probability of its existence and fails to make inquiry or acts with a

       conscious purpose to avoid learning the fact.

       {¶19} “Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Huff (2001), 145 Ohio App.3d 555, 563, 763 N.E.2d 695.

(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a

subjective one, but it is decided on objective criteria.” State v. McDaniel (May 1, 1998),

Montgomery App. No. 16221, 1998 WL 214606 *7, citing State v. Elliott (1995), 104 Ohio

App.3d 812, 663 N.E.2d 412.

       {¶20} Ms. Law testified that she attempted to calm an angry Appellant and when

she began to walk away, Appellant picked up a piece of pavement and struck her. Mr.

Hoefler witnessed Appellant strike Ms. Law. From this testimony the trier of fact could

find beyond a reasonable doubt that Appellant acted with the knowledge that his action

would cause a certain result.

       {¶21} The jury must also find that Appellant knowingly caused serious physical

harm to Ms. Law and/or that he knowingly caused or attempted to cause physical harm

to Ms. Law by means of a deadly weapon.

       {¶22} “Serious physical harm to persons” as defined in R.C. 2901.01(A) (5) (c)

means “[A]ny physical harm that involves some permanent incapacity, whether partial or

total, or that involves some temporary, substantial incapacity.”

       {¶23} “Physical harm to persons” means any injury, illness, or other physiological

impairment, regardless of its gravity or duration. R.C. 2901.01(A)(3) “Deadly weapon”

means any instrument, device, or thing capable of inflicting death, and designed or
Stark County, Case No. 2017CA00013                                                  7


specially adapted for use as a weapon, or possessed, carried, or used as a weapon. R.C.

2923.11 (A)

        {¶24} Ms. Law testified to suffering lacerations requiring fifteen sutures and five

staples and noted that the wounds left scars.        She also complained of suffering a

concussion.    That testimony, combined with the photographs and medical records

provided sufficient evidence from which the jury could find she suffered serious physical

harm. State v. Combs, 5th Dist. Stark No, 2001CA00222, 2002 WL 391688 (March 11,

2002)

        {¶25} The piece of pavement described by Ms. Law and Mr. Hoefler was used

and possessed by Appellant as a bludgeon and could be considered a deadly weapon

capable of inflicting death.   State v. Thomas, 5th Dist. Stark No. 2015CA000377 2015-

Ohio-4932, ¶ 70-71 citing In re J.T., 143 Ohio St.3d 516, 2015-Ohio-3654, 39 N.E.3d 124,

State v. Coleman, 1st Dist. Hamilton No. C-900872, 1992 WL 45955, at *3 (Mar. 11, 1992)

“The Committee Comments to R.C. 2923.11 provide that a deadly weapon is defined as

“any device capable of causing death, and which is either designed or specially adapted

for use as a weapon such as a gun, knife, billy or brass knuckles), or is carried,

possessed, or used as a weapon (such as a rock or cane when used for offensive

purposes).” State v. Twinam, 2nd Dist. Montgomery No 25153, 2013-Ohio-720 ¶13.

Where the instrument involved is not a deadly weapon per se, the question of its capability

as a deadly weapon is ordinarily one for the jury. State v. Clark, 2nd Dist. Clark No. 1298,

1979 WL 208322. *2 (May 23, 1979) There was sufficient evidence for the jury to

determine that the piece of pavement was a deadly weapon and that Ms. Law suffered

physical harm.
Stark County, Case No. 2017CA00013                                                 8


      {¶26} Appellant was also convicted of Domestic Violence with the specification

that he had previously been convicted of domestic violence on two occasions prior to the

date of the current offense. The prior convictions were stipulated, so the jury’s finding

that the two prior convictions occurred is supported by the evidence. Because this count

was based upon the incident that formed the basis for the charge of felonious assault, the

issue of physical harm and whether Appellant acted knowingly has been resolved against

Appellant and the only remaining issue is whether Ms. Law is a family or household

member.

      {¶27} Ms. Law testified that she had a long term relationship with Appellant, that

they lived together for a short time and that the relationship had terminated weeks before

the assault. Appellant corroborated her testimony regarding their relationship. The

phrase “family or household member” is defined as:

      (F) As used in this section and sections 2919.251 and 2919.26 of the

      Revised Code:

      (1)    “Family or household member” means any of the following:

      (a)    Any of the following who is residing or has resided with the offender:

      (i)    A spouse, a person living as a spouse, or a former spouse of the

      offender;

                                         …

      (2) “Person living as a spouse” means a person who is living or has lived

      with the offender in a common law marital relationship, who otherwise is

      cohabiting with the offender, or who otherwise has cohabited with the
Stark County, Case No. 2017CA00013                                                     9


       offender within five years prior to the date of the alleged commission of the

       act in question.

       {¶28} The testimony of Appellant and Ms. Law provided sufficient evidence that

Ms. Law cohabited with the “offender within five years prior to the date of the alleged

commission of the act in question” when they admitted they had lived together and Ms.

Law testified that the cohabitation occurred within two years of the date of the incident.

       {¶29} We conclude that a reasonable person could have found beyond a

reasonable doubt that Pearson committed the crimes of felonious assault and domestic

violence. We hold, therefore, that the state met its burden of production regarding each

element of the crimes of felonious assault and domestic violence and, accordingly, there

was sufficient evidence to support Pearson’s convictions.

       {¶30} We now turn to Appellant’s contention that the verdict was against the

manifest weight of the evidence. In determining whether a conviction is against the

manifest weight of the evidence, the court of appeals functions as the “thirteenth juror,”

and after “reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be overturned and a new trial ordered.” State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E. 2nd 541 (1997) superseded by constitutional amendment

on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.
Stark County, Case No. 2017CA00013                                                   10


       {¶31} Appellant’s argument focuses on the credibility of the witnesses, but the

weight to be given to the evidence and the credibility of the witnesses are issues for the

trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 237 N.E.2d 212 (1967). The trier

of fact “has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page.” Davis v. Flickinger,

77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997) The jury as the trier of fact was free to

accept or reject any and all of the evidence offered by the parties and assess the witness's

credibility. “While the jury may take note of the inconsistencies and resolve or discount

them accordingly * * * such inconsistencies do not render defendant's conviction against

the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No.

99AP–739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No.

95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all

of a witness' testimony, but may accept only portions of it as true. State v. Raver, 10th

Dist. Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61,

67, 197 N.E.2d 548 (1964).

       {¶32} Based upon the foregoing and the entire record in this matter, we find that

the jury neither lost its way nor created a miscarriage of justice in convicting Pearson of

the charges and the verdict is not against the manifest weight of the evidence. To the

contrary, the jury appears to have fairly and impartially decided the matters before them.

The jury as a trier of fact can reach different conclusions concerning the credibility of the

testimony of the state's witnesses and Appellant. The jury heard the witnesses, evaluated

the evidence, and was convinced of Pearson's guilt.

       {¶33} Appellant's sole assignment of error is overruled.
Stark County, Case No. 2017CA00013                                         11


      {¶34} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed. Costs are assessed to Appellant.

By: Baldwin, J.

Gwin, P.J. and

Earle Wise, J. concur.
