[Cite as State v. McKinney, 2014-Ohio-5591.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


State of Ohio                                      Court of Appeals No. E-13-008

        Appellee                                   Trial Court No. 2012-CR-195

v.

Robert W. McKinney                                 DECISION AND JUDGMENT

        Appellant                                  Decided: December 19, 2014

                                               *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann
        Barylski and Frank Romeo Zeleznikar, Assistant Prosecuting Attorneys,
        for appellee.

        Edward J. Stechschulte, for appellant.

                                               *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Erie County Court of Common

Pleas that found appellant guilty of one count of assault in violation of R.C. 2903.13(A),
a first degree misdemeanor. For the reasons that follow, the judgment of the trial court is

affirmed.

       {¶ 2} The undisputed facts relevant to the issues raised on appeal are as follows.

On June 13, 2012, appellant was indicted on one count of felonious assault in violation of

R.C. 2903.11(A)(2) in connection with an assault upon Dwayne Jarrell on March 24,

2012, at the Vermillion County Club (“the club”). Appellant entered a plea of not guilty

to the charge and on January 15, 2013, trial to a jury commenced.

       {¶ 3} The state presented the testimony of eight witnesses. First to testify was Sgt.

Daniel McGlothlin, with the Erie County Sheriff’s Office, who responded to a call on

March 24, 2012, reporting a fight at the Vermillion Country Club. When McGlothlin

arrived, the suspect had left and several deputies were talking to Dwayne Jarrell, the

victim. McGlothlin attempted to gather information from two witnesses at the bar who

he was told had been sitting with appellant, but found them to be “uncooperative.” The

sergeant did not speak directly with the victim but observed that he had a cut on his scalp.

McGlothlin also observed broken glass on the floor of the men’s room.

       {¶ 4} Carolyn Springer, who was tending bar at the club at the time of the assault,

testified that toward the end of the evening she heard yelling “back and forth” but did not

observe any physical confrontation.

       {¶ 5} Deputy Alexis Harvey testified that she responded to the call and

interviewed Jarrell, who told her that while using the restroom he was attacked and hit on

the back of the head with a glass mug. Jarrell also reported that he was choked and



2.
thrown across the room into a stack of folding chairs. Jarrell stated that the assailant said

Jarrell had “done [appellant’s] nephew wrong.” Deputy Harvey took photos of broken

glass on the floor in the rest room stall and of swelling on the back of Jarrell’s head.

Harvey also spoke to Jarrell’s companion and some of his friends, who did not provide

any additional information. No independent witnesses came forward to report seeing a

fight in the men’s room. When Harvey arrived at the scene, the assailant was gone.

Jarrell gave the deputy appellant’s name and she followed up the following day, but “did

not learn too much from him.” Harvey further testified that she did not take the broken

glass into evidence.

       {¶ 6} Timothy McKinney, appellant’s brother, testified that in 2010 he removed

his son, Ian, from a baseball team coached by Jarrell because the two adults did not see

eye-to-eye. McKinney stated that Jarrell told him his son was not welcome at the end-of-

season party and that McKinney would be arrested for trespassing and causing a scene if

he attended. McKinney believed Jarrell did not like the way McKinney allegedly

conducted himself at the games. McKinney also believed his brother, appellant, felt

Jarrell’s actions as a coach were inappropriate, as did McKinney. McKinney read to the

court an undated letter he wrote to appellant’s attorney after the assault in which he

detailed the reasons he believed Jarrell was a terrible coach. In the letter, McKinney

admitted that when he ran into the victim’s wife after the assault he “flipped her off and

told her to F-off.”




3.
       {¶ 7} The victim’s wife testified that after the assault she observed a lump on the

back of Jarrell’s head and some scratches on his throat. She stated that they did not go to

the hospital until the following morning because of a concern as to their insurance

coverage. Her husband did not require stitches but has experienced headaches and

intermittent blurry vision since the assault.

       {¶ 8} Deputy Jared Oliver testified he was assigned to the detective bureau on the

night of the assault. A few days after the attack, Jarrell called Oliver and said he believed

the person who hit him was Robert McKinney. Oliver prepared a photo array and

showed it to Jarrell a few days after the incident. Jarrell identified appellant from the

array as the individual who assaulted him and said he was “one hundred percent positive”

of the identification. Jarrell stated that appellant threatened to kill him while he was

choking him. Jarrell also told Oliver that he was diagnosed with a concussion, a sprained

back and a strained neck. After speaking to Jarrell, Oliver attempted unsuccessfully to

contact appellant at his residence. Oliver then consulted with another detective and the

prosecutor and the decision was made to charge appellant with felonious assault. Oliver

explained that the level of the offense charged in this case did not warrant calling in the

Ohio Bureau of Criminal Identification and Investigation (“BCI”) to examine the pieces

of broken glass for DNA or fingerprints. Oliver acknowledged that, while Jarrell told the

officer appellant said he would kill him, there was no mention in Deputy Harvey’s

incident report that Jarrell reported the threat.




4.
       {¶ 9} The state next called Jonathan Smith, who was at the Vermillion County

Club with his wife and Jarrell for a birthday party on the night of the assault. Smith

testified that at one point during the evening Jarrell walked up to him and said he had just

been jumped in the men’s room and hit on the head with a beer mug. When Smith asked

Jarrell who hit him, Jarrell pointed out a man sitting at the bar. Smith and Jarrell

approached the individual, who was later identified as appellant, and Smith asked why he

hit Jarrell. Appellant responded that Jarrell had ostracized his nephew and cut him from

Jarrell’s baseball team. When Smith questioned why appellant had to hit Jarrell,

appellant asked Smith if he wanted to get hit with a mug. Smith backed away and his

wife, who was standing nearby, called the police. At that time, appellant left the club and

Jarrell took Smith to the men’s room, where Smith saw broken glass on the floor. Smith

saw some bumps on the back of Jarrell’s head and noticed that Jarrell’s eyes were glassy.

       {¶ 10} Dwayne Jarrell testified that in 2009 he coached appellant’s nephew, Ian,

on a local baseball team. At the end of the season, he determined that he would not

permit Ian to play with the team the following year because his father, Timothy

McKinney, was loud and confrontational with the umpires. When Ian’s father called

Jarrell and asked why his son had not been chosen to return to the team, Jarrell told

McKinney he considered him “a cancer in the stands.” The assault in this case occurred

approximately three years after that conversation. Jarrell testified that on the night of the

assault, he and some friends went to the Vermillion Country Club. When he walked to

the men’s room at one point during the evening, he stepped into the stall and was hit on



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the back of his head. His knees buckled and he felt as if he were having a heart attack.

He then felt someone grab him around the throat. His assailant said, “You don’t know

who I am, do you?” When Jarrell responded that he did not, his assailant tightened his

grip. Jarrell tried to break free and told the man he must have him confused with

someone else. His assailant then said, “You did my nephew wrong. I’m going to kill

you.” As Jarrell continued to struggle, he saw a man and a woman standing in the

doorway watching. The assailant repeatedly told Jarrell he “did his nephew wrong.”

Finally, the man threw Jarrell into a stack of chairs and walked out of the restroom. A

few seconds later, Jarrell exited the restroom and rejoined his friends. One of Jarrell’s

friends confronted appellant and asked why he had hit Jarrell. Appellant again referred to

Jarrell having done his nephew wrong. Jarrell’s friends exchanged words with appellant

and then called the police. The police arrived in a few minutes and took Jarrell’s

statement. Jarrell reported blurry vision and headaches following the assault and stated

that he sought medical attention the following morning. Jarrell testified that he had met

appellant once or twice before the assault but knew him only as Tim McKinney’s brother.

Jarrell identified appellant in court as his assailant.

       {¶ 11} The defense presented testimony from appellant’s physician and two of

appellant’s friends. James Andrasko, M.D., a general surgeon, first saw appellant in the

fall of 2011 when appellant was hospitalized for abdominal pain experienced after a

hernia repair that was done by another physician. When appellant’s condition worsened,

Andrasko performed an exploratory laparotomy. Part of appellant’s small intestine was



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removed and an ileostomy was put in place. On February 21, 2012, when appellant had

healed from the operation, he returned to surgery and Dr. Andrasko rehooked the bowel

and closed the site. Then on March 14, 2012, Andrasko removed the sutures. The doctor

cautioned appellant against any heavy lifting for six to eight weeks in order to avoid

tearing the incision. When the prosecutor handed the doctor a glass beer mug and asked

if lifting it would have violated appellant’s weight restriction, the doctor responded that it

would not. Andrasko confirmed that experiencing a blow to the head with a glass beer

mug could cause severe physical harm or death.

       {¶ 12} Karen Greenlief testified that she had known appellant for several years

and moved in with him in 2011 to help him after he underwent surgery in October of that

year. She further testified that after the second surgery appellant was very weak and

needed help with everyday activities. In March, after the staples in appellant’s abdomen

were removed, he experienced soreness and moved about slowly. On the night of March

24, 2012, Greenlief convinced appellant to go to the country club for some take-out

dinner. She testified that while they were waiting for their food, appellant went to the

restroom. Greenlief further testified that appellant was not carrying anything with him

when he went into the restroom. When appellant walked out of the restroom, Jarrell

followed him, yelling that appellant had hit him with a beer mug. She and appellant then

took their food order and left.

       {¶ 13} Thomas Skully, a friend of appellant’s, testified that he was in the restroom

when an argument started between appellant and Jarrell. He stated that appellant was in



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the restroom and Jarrell was standing in the doorway when he heard profanity and

yelling. Skully did not see anyone get hit with a beer mug or observe any other physical

confrontation. Skully left the restroom and saw appellant pick up his food and leave with

his girlfriend a few minutes later. Although Skully was still at the club when the police

arrived, he did not speak to any of the officers. Later that evening, Skully told appellant

that the police had been called to the club. Additionally, Skully stated that he talked to

appellant a few times thereafter about what he might say at trial.

       {¶ 14} Lastly, the state called Rose Smith as a rebuttal witness. Smith testified

that she and her husband were at the club for a friend’s birthday gathering when Jarrell

walked out of the restroom and told Smith and her husband that someone had hit him on

the back of the head. Smith’s testimony as to the sequence of events that night

essentially confirmed that of her husband, Jonathan Smith.

       {¶ 15} On January 18, 2013, the jury found appellant guilty of the lesser included

offense of assault in violation of R.C. 2903.13(A). The trial court imposed a sentence of

120 days in the Erie County Jail. This timely appeal followed.

       {¶ 16} Appellant sets forth the following assignments of error:

              Assignment of Error No. 1: The prosecuting attorney failed to

       disclose a written summary of Appellant’s oral statement given to sheriff’s

       deputies in violation of Ohio Criminal Rule 16 and the Fifth and Fourteenth

       Amendments to the United States Constitution and comparable provisions

       of the Ohio Constitution.



8.
            Assignment of Error No. 2: The prosecuting attorney’s remarks

     during the trial and closing arguments constituted prosecutorial misconduct

     that deprived Appellant of a fair trial in violation of the Fifth And

     Fourteenth Amendments to the United States Constitution and comparable

     provisions of the Ohio Constitution.

            Assignment of Error No. 3: The photo array introduced to identify

     Appellant was unduly suggestive and unreliable and deprived Appellant of

     a fair trial in violation of the Fifth and Fourteenth Amendments to the

     United States Constitution and comparable provisions of the Ohio

     Constitution.

            Assignment of Error No. 4: Appellant’s trial counsel deprived

     Appellant of his rights to a fair trial, the effective assistance of counsel, and

     due process of law a guaranteed by the Fifth, Sixth, and Fourteenth

     Amendments to the United States Constitution and comparable provisions

     of the Ohio Constitution.

            Assignment of Error No. 5: Appellant’s conviction was not

     supported by sufficient evidence to prove beyond a reasonable doubt each

     and every element of the crime charged , and thereby deprived Appellant of

     the due process of law as guaranteed by the Fifth and Fourteenth

     Amendments to the United States Constitution and comparable provisions

     of the Ohio Constitution.



9.
              Assignment of Error No. 6: The jury’s verdict was against the

       manifest weight of the evidence and thereby deprived Appellant of the due

       process of law as guaranteed by the Fifth and Fourteenth Amendments to

       the United States Constitution and comparable provisions of the Ohio

       Constitution.

       {¶ 17} In support of his first assignment of error, appellant asserts that he was

handicapped in his trial preparation because the state failed to provide the defense with a

written summary of an oral statement appellant made when he was served with the

warrant in this matter.

       {¶ 18} This issue arose when, after the state rested its case in chief, the trial court

discovered a police report made at the time of appellant’s arrest on the indictment. The

report noted that when appellant was arrested, he stated, “I didn’t touch the guy, it was

just an argument.” Defense counsel noted that he had not received the report. The

prosecutor also expressed surprise that the defense had not received a copy. The record

reflects that the defense did not object to the introduction of the police report into

evidence and did not move for a mistrial or continuance based on having not received it.

       {¶ 19} Appellant argues that the state’s failure to produce his oral statement until

after the close of its case in chief denied him his right of due process and a fair trial

because his trial preparation was hindered, specifically in terms of deciding whether or

not to take the witness stand. The record reflects a fairly lengthy discussion at the bench

after the court noticed the existence of the report and called it to the attention of the



10.
prosecutor and defense counsel. Despite the lengthy discussion, however, defense

counsel ultimately did not object to the introduction of the police report into evidence or

move for a continuance or mistrial based on the failure to receive the report.

       {¶ 20} Because appellant did not object to the admission of the police report into

evidence, he has waived all but plain error. State v. Ross, 6th Dist. Huron No. H-11-022,

2013-Ohio-1595; Crim.R. 52(B). “Plain error does not exist unless, but for the error, the

outcome of the proceedings would have been different.” State v. Moreland, 50 Ohio

St.3d 58, 552 N.E.2d 894 (1990).

       {¶ 21} After reviewing the entire record in this case as set forth above, we find no

plain error. Appellant has not shown that knowledge of the statement, “It was only an

argument,” in the police report before the trial court brought it to his attention would have

benefitted him in the preparation of his defense. He has failed to show that defense

counsel’s trial strategy would have been different had he been aware of the report and

appellant’s statement contained therein before the state presented its case in chief. This

court is unable to see how this statement alone would have influenced the outcome of the

trial. We find no indication that the statement had any impact on the decision-making

process regarding waiver of a jury or appellant’s decision not to testify, as appellant

asserts. Considering that defense and prosecution witnesses placed appellant in or near

the restroom at the time of the offense, the only other issue was the nature and extent of

injuries suffered by the victim; the statement made by appellant would have had no

impact on the jury’s decision as to Jarrell’s injuries.



11.
       {¶ 22} Accordingly, based on the foregoing, appellant’s first assignment of error is

not well-taken.

       {¶ 23} In support of his second assignment of error, appellant asserts that various

remarks made by the prosecutor during the trial and closing argument were improper and

inflammatory.

       {¶ 24} Generally, “[p]rosecutorial misconduct occurs when the prosecutor makes a

statement that is improper and the improper statement causes prejudice to appellant.”

State v. Stowers, 6th Dist. Erie No. E-12-055, 2014-Ohio-147, ¶ 39, citing State v. Smith,

14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984).

       {¶ 25} First, appellant argues that the prosecutor questioned state’s witness

Deputy Oliver in a manner that was irrelevant and designed to “draw a direct correlation

between the credibility of the state’s witness and the prestige of the prosecutor’s office.”

Seeking to rebut defense counsel’s questions on cross as to why the BCI was not called to

the scene, the prosecutor asked the deputy if he remembered “a time when you and I were

standing outside the residence where that triple homicide occurred?” The deputy

responded in the affirmative and the prosecutor continued, “We called BCI in that,

correct?” Deputy Oliver responded, “We did.” The deputy testified that BCI is called to

assist only in the case of a “very, very violent act that could potentially become a

homicide.”

       {¶ 26} Appellant insisted at trial that the BCI should have been called in by the

sheriff’s office. The prosecutor’s line of questioning during re-direct clearly was



12.
intended to reinforce the point that the BCI is generally called only in cases of violent

acts and homicides. Rather than an attempt to bolster the state’s credibility, the

prosecutor’s questions appear to have been intended to explain why the BCI was not

called in to test for DNA and fingerprints on the broken beer mug. Further, we note that

this line of questioning regarding the failure to call BCI was initiated by defense counsel

during his cross-examination of Deputy Oliver. This argument is without merit.

       {¶ 27} Next, appellant asserts that the prosecutor made numerous inflammatory

and improper remarks during his cross-examination of witnesses Karen Greenlief and

Thomas Skully. Specifically, appellant argues that the prosecutor improperly questioned

Greenlief about appellant’s silence after the incident occurred. During cross-examination

of Greenlief, the state asked the following: “Bob McKinney never picked up the phone

and called the police, did he?” Defense counsel objected and the objection was

overruled. The state then asked: “And the reason why isn’t because Mr. McKinney is

innocent of these charges, isn’t that the case?” Greenlief responded, “No, that’s not the

case.” We find no impropriety with that line of questioning, as the state was merely

questioning the witness as to appellant’s actions after the incident and asking the jury to

make reasonable inferences therefrom.

       {¶ 28} Appellant further argues that the state improperly attacked witness Thomas

Skully’s character when the prosecutor asked Skully whether he was appellant’s

“drinking buddy,” and whether he had ever “hear[d] of the term surprise witness.” The




13.
prosecutor also questioned Skully as follows: “Now, I noticed on direct examination you

didn’t quite stick to the script, did you?”

       {¶ 29} Evid.R. 607(A) clearly allows an attack on a witness’ credibility although it

restricts such attacks by the party calling the witness. In this case, Skully was called as a

defense witness and the reference in the transcript is to cross-examination by the state.

Skully was not the state’s witness. Upon consideration of the foregoing, we find the

attack on the credibility of this witness was proper.

       {¶ 30} Additionally, appellant asserts that during closing argument the prosecutor

commented improperly on the testimony of several witnesses. The following comments

by the prosecutor are cited by appellant as inappropriate:

              So the testimony of Dwayne Jarrell was consistent, it was truthful,

       and it was very credible * * *.

              [T]he final witness, really Rose was probably one of the most

       credible witnesses we saw here.

              Their inconsistencies prove that they are very truthful and credible

       people. * * * If they were not credible, * * * they would have got their

       stories straight * * *.

       {¶ 31} As to witness Skully, the prosecutor stated: “He was your eyewitness and

he was so incredible it’s almost laughable. This is a guy that’s a convicted felon, has two

names, and drinks with the defendant.” As to the testimony of defense witness Greenlief,

the prosecutor stated: “this idea that Karen Greenlief had to beg the defendant to go



14.
down to a bar that night is ridiculous. He was meeting Skully, his drinking buddy. I

mean, it’s * * * ludicrous.”

       {¶ 32} Prosecutors are generally entitled to considerable latitude in opening and

closing arguments. State v. Balew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996). During

closing arguments, the prosecution is free to comment upon that which the evidence has

shown and any reasonable inferences that can be drawn therefrom. State v. Lott, 51 Ohio

St.3d 160, 555 N.E.2d 293 (1990). Most significantly, any claimed misconduct of

counsel during closing arguments must be considered in the context of the entire case to

determine if it resulted in actual prejudice to the defendant. State v. Lorraine, 66 Ohio

St.3d 414, 613 N.E.2d 212 (1993).

       {¶ 33} Lastly, appellant asserts that the prosecutor misstated the burden of proof

and the definition of proof beyond a reasonable doubt with the following comments:

              What is reasonable doubt? You have to – you have to find that one

       of these positions, if you will, and I’m not exactly sure what it is yet, I

       guess we’ll hear it in closing argument (inaudible) the positions of the

       defense is reasonable, like this never happened.

              ***

              So as you work through this process, think about that, because if it’s

       not reasonable, folks, rational, logical to believe that, given all the

       evidence, then there’s no reasonable doubt.




15.
       {¶ 34} While perhaps inartfully stated, we are unable to find that the prosecutor’s

language was an attempt to shift the burden of proof to appellant. At no time did the

prosecutor state that the defense carried the burden of establishing reasonable doubt.

Further, we note that the trial court properly instructed the jury as to the state’s burden,

stating that “[t]he defendant must be acquitted, unless the State of Ohio * * * produces

evidence which convinces you beyond a reasonable doubt of every element of the crime.”

       {¶ 35} We note that defense counsel did not object to any of the aforementioned

comments by the prosecutor. “Failure to object to the alleged misconduct of the

prosecutor at trial means that an appellant will have waived all but plain error.” State v.

Bickley, 6th Dist. Erie No. E-09-024, 2010-Ohio-1480, ¶ 23. Further, “[p]lain error does

not exist unless, but for the improper comments of the prosecutor the outcome of

defendant’s trial would clearly have been different; that is, he would not have been

convicted.” Id.

       {¶ 36} We have carefully considered the allegations of prosecutorial misconduct

in this matter. We find that the record of evidence reflects no impropriety in the disputed

statements by the prosecutor during closing arguments or during his questioning of the

witnesses as described above, and therefore no prejudice to appellant. The comments

cited by appellant appear to have been intended to direct the jury to the consistencies and

inconsistencies of several witnesses for the state and the defense. Upon consideration of

the foregoing, we find that the statements cited by appellant did not meet the criteria for

plain error. Having reviewed the trial testimony in its entirety, we cannot say that but for



16.
the prosecutor’s comments the outcome of the trial would clearly have been different.

Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 37} In support of his third assignment of error, appellant asserts that the photo

array shown to Jarrell was unduly suggestive and unreliable. Appellant argues that Jarrell

was just as likely to have identified appellant based on past associations with him as he

was to have identified him based on the assault. Additionally, appellant argues that the

photo array was essentially a “one-on-one show up” because it contained appellant’s

photograph and five other random individuals whom Jarrell did not know which,

according to appellant, made it likely that Jarrell would have easily eliminated the other

five individuals, leaving only appellant.

       {¶ 38} R.C. 2933.83 requires any law enforcement agency that conducts live and

photo lineups to adopt “specific procedures” for conducting the lineups. R.C.

2933.83(B). Such procedures must provide, at minimum, the use of a “blind or blinded”

administrator for the array. R.C. 2933.83(B)(1). Our review of the record shows that the

photo array in question complied with the requirements set forth in R.C. 2933.83. Chief

Deputy Oliver testified at length as to the procedure he employed in assembling the photo

array and in arranging for a “blind administrator” to show it to Jarrell. Appellant’s

argument that the photo array was unduly suggestive or unreliable because Jarrell had

past contact with appellant is without merit. We find that no error occurred and,

accordingly, appellant’s third assignment of error is not well-taken.




17.
         {¶ 39} In support of his fourth assignment of error, appellant asserts that he

received ineffective assistance of trial counsel. Appellant cites counsel’s failure to object

to the report of appellant’s oral statement at the time of his arrest, the improper remarks

made by the prosecutor during the trial and closing argument, and admission of the photo

array.

         {¶ 40} It is well-established that claims of ineffective assistance of counsel are

reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104

St.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prove ineffective assistance of counsel,

appellant must demonstrate both that the performance of trial counsel was defective and

that, but for that defect, the outcome would have been different. Id. at 687. We note that,

in support of his argument, appellant raises issues we addressed under the previous three

assignments of error and found to be without merit. Applying Strickland to the instant

case, we are unable to find upon our review of the record that trial counsel was

ineffective in any respect. Accordingly, appellant’s fourth assignment of error is not

well-taken.

         {¶ 41} Appellant’s fifth and sixth assignments of error will be addressed together.

In his fifth assignment of error, appellant asserts that his conviction was not supported by

sufficient evidence to prove each and every element of the crime charged. In support,

appellant argues that the state failed to prove that appellant caused physical harm to

Jarrell. In support of his sixth assignment of error, appellant asserts that the jury’s verdict

was against the manifest weight of the evidence. Appellant argues there was no physical



18.
evidence connecting him to the injuries suffered by Jarrell and no one in the bar

witnessed the physical altercation, with the only direct evidence being Jarrell’s testimony.

       {¶ 42} The term “sufficiency” of the evidence presents a question of law as to

whether the evidence is legally adequate to support a jury verdict as to all elements of the

crime. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant

inquiry in such cases is “whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

       {¶ 43} “In contrast, a manifest weight challenge questions whether the state has

met its burden of persuasion.” State v. Davis, 6th Dist. Wood No. WD-10-077, 2012-

Ohio-1394, ¶ 17, citing Thompkins, supra, at 387. In making this determination, the

court of appeals sits as a “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 reversed

and a new trial ordered.” Thompkins, supra, at 386.

       {¶ 44} Appellant was convicted of assault, in violation of R.C. 2903.13(A), which

states that “[n]o person shall knowingly cause or attempt to cause physical harm to

another * * *.”




19.
       {¶ 45} This court has reviewed the applicable law, as well as the trial court’s

record, including the oral testimony of each witness as summarized above. Upon due

consideration, we find that any rational trier of fact could have found the essential

elements of the offense of assault proven beyond a reasonable doubt. In addition, we

find, after reviewing the entire record and weighing the evidence and all reasonable

inferences, that the trier of fact did not lose its way in reaching its verdict. Accordingly,

appellant’s fifth and sixth assignments of error are not well-taken.

       {¶ 46} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.

                                                                        Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
James D. Jensen, J.                                          JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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