[Cite as State v. Blair, 2012-Ohio-1706.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

                                                        JUDGES:
STATE OF OHIO                                   :       Hon. Patricia A. Delaney, P.J.
                                                :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-00223
REGINALD BLAIR                                  :
                                                :
                     Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                            Criminal appeal from the Canton Municipal
                                                    Court, Case No. 2011CRB2386

JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             April 16, 2012




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

ANTHONY FLEX                                        KIMBERLY L. STOUT
Canton Prosecutor's Office                          Stark County Public Defender's Office
218 Cleveland Ave. S.W.                             200 West Tuscarawas St., Ste. 200
Canton, OH 44701                                    Canton, OH 44702
[Cite as State v. Blair, 2012-Ohio-1706.]


Gwin, J.

        {1}      On September 12, 2011, appellant Reginald Blair (“Blair”) was found guilty

after trial by jury of one count of assault, a first degree misdemeanor. The Court

sentenced him to 180 days in the Stark County Jail, with all but 60 days suspended on

the condition of his good behavior for two years and imposed a $100 fine plus court

costs. The court also placed him on direct probation for two years. Blair was also

ordered to sign up and comply with Summit Psychological Program and to follow all

recommendations.

                                            Facts and Procedural History

        {2}      On June 29, 2011, at approximately 9:30 a.m. sisters March South, Paula

Hackney, and other family members were at the Stark County Courthouse to meet with

the prosecutor to discuss sentencing for a defendant who killed Hackney’s daughter in

an automobile accident. Blair is the brother-in-law of the person who had driven the

vehicle that killed Hackney’s daughter. When the group arrived, they saw Blair, whom

they had never met before, upstairs waiting outside the room in which they were to meet

the prosecutor. After meeting with the prosecutor, March South, Paula Hackney and the

other members of the family took the stairs to leave the courthouse and go to breakfast.

        {3}      As the group was walking down the stairs, Blair approached them from

behind. At the beginning of the last flight of stairs, Blair told South that he heard she

was looking for him or wanted to meet him and he stuck out his hand for her to shake.

South told Blair that she did not want to meet him and she did not want to shake his

hand. Blair then pushed South, brushed past her, and said he did not want to meet her;

he wanted to talk to her sister Paula Hackney.
Stark County, Case No. 2011-CA-00223                                                         3


         {4}   March South was walking with a cane in her right hand and her purse on

her left arm. Blair turned around, backed South up against the railing, and started yelling

at her and spitting in her face. He then reached for and made contact with South's throat

causing her to jerk back away from him. Hackney turned around and saw Blair shove

South and reach for South's neck. Hackney yelled at Blair to "get the 'F' off her sister."

         {5}   Stacie Manfull, a victim advocate for Stark County, saw Blair follow South

down the stairs and she heard South say, "I don't know you.” As Manfull reached the

landing between the first and second set of stairs she could see Blair and South face-to-

face, screaming at each other. Manfull was going to intervene when she heard another

advocate tell her to get out of the way. Manfull then saw Blair grab for South. Manfull

heard Hackney yell, "get your fucking hands off my sister.” Hackney, South, and Manfull

described Blair as aggressive and angry. Stacie said she thought Blair was going to hurt

South.

         {6}   When Deputy Hallock arrived, there was a large group of people

screaming at each other, including Blair and March South. Deputy Finn separated the

parties. Neither Deputy Hallock nor Deputy Finn saw Blair touch March South.

         {7}   Blair raises two assignments of error,

         {8}   “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT BY OVERRULING DEFENDANT'S OBJECTION AND DENYING

APPELLANT'S RULE 29 MOTION WHEN APPELLANT'S CONSTITUTIONAL DUE

PROCESS RIGHTS AND RIGHT TO A FAIR TRIAL HAD BEEN VIOLATED.
Stark County, Case No. 2011-CA-00223                                                         4


       {9}    “II.   THE     APPELLANT'S         CONVICTION         FOR      ASSAULT        IS

UNSUPPORTED BY SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

       {10}   Because appellant’s assignments of error each require us to review the

evidence, we shall address the assignments collectively.

       {11}   In his first assignment of error, Blair alleges that the trial court erred in not

granting his Crim. R. 29 motion for acquittal. In determining whether a trial court erred in

overruling an appellant's motion for judgment of acquittal, the reviewing court focuses

on the sufficiency of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553,

1995-Ohio-104, 651 N.E.2d 965 (1995); State v. Jenks, 61 Ohio St.3d 259 at 273, 574

N.E.2d 492 (1991), superseded by constitutional amendment on other grounds in State

v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997); State v. McBride, 5th Dist. No. 2008-

CA-00076, 2008-Ohio-5888, ¶49.

       {12}   Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Accord, McDaniel v. Brown, _U.S._, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010)

(reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–

Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–

2720, ¶ 68.
Stark County, Case No. 2011-CA-00223                                                      5


       {13}   Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 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-Ohio-355. When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the

evidence, the appellate court sits as a “’thirteenth juror’” and disagrees with the fact

finder’s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs

v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an

appellate court may not merely substitute its view for that of the jury, but must find that

“‘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.’” State v. Thompkins, supra, 78

Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717,

720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved

for “‘the exceptional case in which the evidence weighs heavily against the conviction.’”

Id.

       {14}   Blair argues that there is no evidence of physical harm and further

because the state alleged in the complaint and the bill of particulars that Blair “did grab

the throat of March E. South” the state was required to prove that allegation to sustain a

conviction for assault in this case.

       {15}   To find Blair guilty of assault as charged in the Complaint, the trier of fact

would have to find that he knowingly caused or attempted to cause physical harm to

another. R.C. 2901.01 states, in relevant part: “(3) ‘Physical harm to persons’ means
Stark County, Case No. 2011-CA-00223                                                    6


any injury, illness, or other physiological impairment, regardless of its gravity or

duration.”

       {16}   R.C. 2901.22 defines “knowingly” as follows:

       (B) 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. A person has knowledge of circumstances when he is

       aware that such circumstances probably exist.

       {17}   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, 145 Ohio App. 3d 555, 563, 763 N.E.2d 695(2001).

(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, 2nd Dist.

No.6221, 1998 WL 214604, (citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d

412(1995)).

       {18}   R.C. 2923.02(A) provides a definition of attempt, "[n]o person, purposely

or knowingly, and when purpose or knowledge is sufficient culpability for the

commission of an offense, shall engage in conduct that, if successful, would constitute

or result in the offense."

       {19}   The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059(1976), paragraph one of

the syllabus, overruled in part by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d

1140(1977); See also, State v. Ashbrook, 5th Dist. No.2004-CA-00109, 2005-Ohio-740,
Stark County, Case No. 2011-CA-00223                                                  7

reversed on other grounds and remanded for re-sentencing pursuant to State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, In re: Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006-Ohio-2109.

      {20}   In defining substantial step, the Woods’ Court indicated that the act need

not be the last proximate act prior to the commission of the offense. Woods at 131-32,

357 N.E.2d 1059. However, the act "must be strongly corroborative of the actor's

criminal purpose." Id. at paragraph one of the syllabus. This test “properly directs

attention to overt acts of the defendant which convincingly demonstrate a firm purpose

to commit a crime, while allowing police intervention, based upon observation of such

incriminating conduct, in order to prevent the crime when the criminal intent becomes

apparent.” Woods, supra at 132, 357 N.E.2d at 1063. In other words, a substantive

crime would have been committed had it not been interrupted. Precisely what conduct

will be held to be a substantial step must be determined by evaluating the facts and

circumstances of each particular case. State v. Group, 98 Ohio St.3d 248, 262, 2002-

Ohio-7247, 781 N.E.2d 980(2002), ¶100.

      {21}   In the case at bar, the evidence presented by the state included the

testimony that Blair pushed South, brushed past her, and said he did not want to meet

her, but he wanted to talk to her sister Paula Hackney. Blair then turned around and

backed South up against the railing and started yelling at her and spitting in her face.

March South testified,

      Um, well he put his hand out and he touched-he was I guess gonna choke

      me but he made contact with my throat with his hand. And I jerked back

      from him and the deputies were pulling him away from me.
Stark County, Case No. 2011-CA-00223                                                      8


      T. at 75.

      {22}   Manfill, South and Hackney each testified that at the time Blair was

aggressive and angry. At the very least, sufficient evidence was presented which if

believed demonstrated Blair’s intent to choke South had the deputies not intervened.

      {23}   In Geboy v. Brigano, 489 F.3d 752, 763(6th Cir. 2007), the Court

observed,

      [A] variance in proof warrants the reversal of a conviction only if it “affect[s]

      the substantial rights of the accused.” Berger v. United States, 295 U.S.

      78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935) (internal quotation marks

      omitted); see also Chilingirian, 280 F.3d at 712; United States v. Zelinka,

      862 F.2d 92, 97 (6th Cir.1988). A defendant's substantial rights are

      affected where he is “prejudicially surprised” by the variance, or where it

      otherwise “prejudice[s] the fairness of [the defendant's] trial.” United States

      v. Miller, 471 U.S. 130, 134-35, 105 S.Ct. 1811, 1814, 85 L.Ed.2d 99

      (1985); see also United States v. Ragen, 314 U.S. 513, 526, 62 S.Ct. 374,

      380, 86 L.Ed. 383 (1942); Berger, 295 U.S. at 82, 55 S.Ct. at 630; Zelinka,

      862 F.2d at 97.

      {24}   The complaint and the bill of particulars filed in the case at bar gave Blair

legal notice that he could be convicted upon proof beyond a reasonable doubt of

“causing or attempting to cause physical harm.” We conclude that Blair was sufficiently

apprised of the crime he was charged with, assault.

      {25}   Upon careful review of the record, we are persuaded that the state

adduced credible probative evidence on each element of the offense of assault that
Stark County, Case No. 2011-CA-00223                                                       9


would enable a reasonable juror to find that Blair, at the very least, took a substantial

step in a course of conduct planned to culminate in the commission of assault. State, ex

rel. Squire v. Cleveland, 150 Ohio St. 303, 345, 82 N.E.2d 709(1948); State v. Woods,

supra.

         {26}   We hold, therefore, that the state met its burden of production regarding

each element of the crime of assault and, accordingly, there was sufficient evidence to

support Blair’s conviction for assault.

         A fundamental premise of our criminal trial system is that ‘the jury is the lie

         detector.’ United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973)

         (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d

         310 (1974). Determining the weight and credibility of witness testimony,

         therefore, has long been held to be the ‘part of every case [that] belongs

         to the jury, who are presumed to be fitted for it by their natural intelligence

         and their practical knowledge of men and the ways of men.’ Aetna Life Ins.

         Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720, 724-725, 35 L.Ed. 371 (1891).

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).

         {27}   Although Blair cross-examined the witnesses and argued that South was

as much at fault for the melee as Blair, and further that there was a lack of evidence that

Blair had choked South, the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552

N.E.2d 180(1990).

         {28}   The jury 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
Stark County, Case No. 2011-CA-00223                                                   10


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. No. 99AP-739, 1999 WL 29752 (Mar 23, 2000)

citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).

Indeed, the jurors need not believe all of a witness' testimony, but may accept only

portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003- Ohio-958, ¶ 21,

citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th

Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio App.3d

667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been

circumstantial, we note that circumstantial evidence has the same probative value as

direct evidence. State v. Jenks, supra.

       {29}   After reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the convictions. The jury

did not create a manifest injustice by concluding that Blair was guilty of the crime of

assault.

       {30}   Based upon the foregoing and the entire record in this matter, we find

Blair's conviction was neither against the manifest weight nor against the sufficiency of

the evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before it. The jury heard the witnesses, evaluated the evidence, and was

convinced of Blair's guilt.
Stark County, Case No. 2011-CA-00223                                                 11


      {31}      Appellant’s first and second assignments of error are overruled in their

entirety, and the judgment of the Canton Municipal Court, Stark County, Ohio, is

affirmed.

By: Gwin, J.,

Delaney, J., and

Wise, J., concur


                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. PATRICIA A. DELANEY


                                              _________________________________
                                              HON. JOHN W. WISE




WSG:clw 0405
[Cite as State v. Blair, 2012-Ohio-1706.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
REGINALD BLAIR                                    :
                                                  :
                                                  :
                         Defendant-Appellant      :       CASE NO. 2011-CA-00223




    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Canton Municipal Court, Stark County, Ohio, is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. JOHN W. WISE
