[Cite as State v. Watson, 2014-Ohio-2395.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100356




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     FRANK WATSON
                                                    DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-574622-A

       BEFORE: Keough, J., Rocco, P.J., and E.A. Gallagher, J.

       RELEASED AND JOURNALIZED: June 5, 2014
ATTORNEY FOR APPELLANT

Allison S. Breneman
1220 West 6th Street
Suite 303
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Frank Watson, appeals from the trial court’s judgment,

rendered after a bench trial, finding him guilty of assault. For the reasons that follow, we

reverse Watson’s conviction and remand with instructions to the trial court to enter

judgment vacating Watson’s conviction. I. Background

       {¶2} Watson was indicted on two counts of aggravated burglary in violation of

R.C. 2911.11(A)(1) and (2); one count of felonious assault in violation of R.C.

2903.11(A)(2); and one count of assault in violation of R.C. 2903.13(A).                His

codefendant, Dazhanae Watson, was indicted on one count of assault in violation of R.C.

2903.13(A). The cases were tried together to the bench.

       {¶3} At trial, Terrie Morris testified that her 16-year-old daughter, R.G., came

home on May 16, 2013, and told her that T.W. and her mother were coming over because

T.W. wanted to fight R.W. R.G. had recently returned home to live with Morris after

living with T.W. and her family for several weeks.

       {¶4} Morris testified that when T.W. and her mother arrived in her yard, she stood

on her porch and questioned T.W.’s mother about why the girls were going to fight. R.G.,

who had been standing behind Morris and exchanging words with T.W., suddenly came

off the porch and began fighting with T.W. When R.G. grabbed a golf club, T.W.

dropped the brick she had been carrying, and T.W. and her mother got in their car and

drove off.
       {¶5} Ten or fifteen minutes later, they came back to Morris’s house and said that

T.W. had lost her glasses in the yard. Morris told them she and R.G. did not have T.W.’s

glasses and ordered them to leave. As T.W. was getting back in the car, Morris heard

T.W.’s mother say, “Don’t worry about it; we’ll deal with them later.”

       {¶6} Morris testified that her doorbell rang at approximately 9 p.m. that evening.

When she answered the door, she saw T.W. and her sister Dazhanae standing on her porch.

 They began arguing with Morris when she told them to leave. According to Morris, “the

next thing I know, hands was swinging everywhere.” Morris testified that she fought with

Dazhanae, and when R.G. came out to help her, T.W. began fighting with R.G. When

Morris saw T.W. fall over the porch railing into the bushes, she told R.G. to call someone

for help.

       {¶7} Morris testified that she then heard a man yell, “What you going to do?”,

heard R.G. say, “No,” and saw R.G. backing up through the front door into the house.

Morris said she broke free from Dazhanae and went into her house to help R.G. She

found R.G. backed up against the wall by Watson, who was in front of her, swinging a

shovel and yelling, “What you going to do? You all ain’t going to do nothing.” Morris

said she then took her gun from a drawer and pointed it at Watson, who immediately

turned and ran out of the house. T.W. and Dazhanae, Watson’s nieces, also ran to their

car, which was parked a short distance down the street, and they all drove away.

       {¶8} R.G.’s testimony was consistent with Morris’s. She said that as she was

dialing the phone to call for help after T.W. fell in the bushes, she saw Watson pick up a
shovel from the front porch. He then knocked the phone out of her hand and yelled,

“What you going to do?” R.G. said that she grabbed a golf club from the porch, swung it,

and hit Watson on his arm. He then hit her right shoulder with the shovel. She testified

that she fell backward through the screen door, and Watson followed her into the house,

yelling at her. R.G. testified that when her mother pointed her gun at Watson, he ran out

of the house.

       {¶9} After the Watsons fled, Morris called the police, who responded to the

scene. R.G. was treated at Lakewood Hospital for a contusion to her upper right arm and

a scrape on her knee.

       {¶10} After the trial court denied Watson and Dazhanae’s Crim.R. 29(A) motions

for acquittal, Dazhanae testified for the defense. She said that Watson drove her and

T.W. to R.G.’s house at approximately 9 p.m. to get T.W.’s glasses. She said that Morris

opened the door and hit her first. According to Dazhanae, as she and Morris were

fighting, R.G. came out and started hitting her, so T.W. started fighting with R.G. R.G.

then went back into her house and came out with a golf club; Watson then came on the

porch and R.G. hit him in the neck with the club. Dazhanae said that Watson then held

the front door shut so R.G. could not get out of the house. She denied that Watson ever

entered the house or that he ever picked up a shovel. She said that Morris broke away

from fighting with her, went into the house, and came out with a gun, at which point they

all ran away. Dazhanae testified that she, T.W., and Watson were the victims in the fight,

not Morris and R.G.
       {¶11}     The trial court found Watson not guilty of aggravated burglary and

felonious assault (Counts 1, 2, and 3) but guilty of assault, a first-degree misdemeanor

(Count 4). The court also found Dazhanae not guilty of assault. The court subsequently

sentenced Watson to six months in jail plus costs.1 This appeal followed.

                                            II. Analysis

       {¶12} In his first assignment of error, Watson argues that his assault conviction was

not supported by sufficient evidence.

       {¶13} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. 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.

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.


         The trial court imposed costs in the journal entry of sentencing but did not mention court
       1


costs at the sentencing hearing. This was error because it denied Watson the opportunity to claim
indigency and seek a waiver of the payment of court costs. State v. Joseph, 125 Ohio St.3d 76,
2010-Ohio-954, 926 N.E.2d 278. Where a trial court imposes court costs in the judgment entry
without mentioning costs at sentencing, an appellate court must reverse the portion of the trial court’s
judgment imposing court costs and remand to allow the defendant the opportunity to move for a
waiver of the payment of court costs. A remand is not necessary in this case, however, because we
reverse Watson’s conviction in its entirety.
       {¶14} Watson contends that the evidence was insufficient to show that he hit R.G.

with a shovel. He points out that R.G. admitted that her bruise went away after only a few

days — which he contends would be unlikely if she had in fact been hit in her arm with a

shovel — and that Dazhanae testified that he never picked up a shovel or hit R.G. with it.

Therefore, he argues the evidence was insufficient to support his conviction for assault.

We find the evidence insufficient, but for reasons other than those offered by Watson.

       {¶15} Watson was found guilty of Count 4 of the indictment, which charged him

with assault in violation of R.C. 2903.13(A). More specifically, it charged that Watson

“[o]n or about May 16, 2013, did knowingly cause or attempt to cause physical harm to

Terrie Morris.” It did not charge Watson with causing or attempting to cause physical

harm to R.G. The indictment was never amended to add R.G. as the victim of Watson’s

alleged assault.

       {¶16} In its brief on appeal, the state argues that the evidence was sufficient to

support the assault conviction because

       Terrie Morris testified that she heard her daughter getting hit, saw her
       daughter crying and in fear of Frank Watson as he was yelling at her and
       approaching her. R.G. testified that Frank Watson hit her in the arm with a
       metal shovel which caused her to fall through and break the screen on the
       front door.

The state contends that this evidence, if believed, was sufficient to support Watson’s

conviction for assaulting R.G.

       {¶17} But Count 4 of the indictment charged Watson with assaulting
             Morris, not R.G.      And the state offered no evidence
             whatsoever that Watson caused or attempted to cause physical
             harm to Morris. All of the evidence demonstrated that
              Dazhanae fought only with Morris and Watson fought only
              with R.G. Indeed, in opposing Watson’s Crim.R. 29(A)
              motion for acquittal before the trial court, the prosecutor cited
              only to evidence relating to Watson’s assault on R.G.:

       As it relates now to defendant Frank Watson, again, the testimony is very
       clear assuming — you know, the facts in the light most favorable to the
       state, defendant Frank Watson comes up onto the porch, he strikes R.G., the
       16-year-old, in the arm. That’s corroborated by the medical records
       showing the contusion to her right arm. As she described, he then knocks
       her into the home and then proceeds to follow her into the home, carrying
       the same shovel with him the entire way, yelling at her, “What you gonna
       do? What you gonna do?”

       The state has met each and every element as charged in the indictment.
       Accordingly, the state would ask this court to deny defendant’s Rule 29
       motion.

       {¶18} Our review of the record demonstrates that Frank’s counsel moved for

acquittal under Crim.R. 29(A) regarding only Counts 1, 2, and 3; inexplicably, he did not

ask for acquittal on Count 4 and thus waived any insufficiency error regarding Count 4 on

appeal. State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 277, 1993-Ohio-49, 611

N.E.2d 830. Under Crim.R. 52(B), however, plain errors affecting substantial rights may

be noticed by an appellate court even though they were not brought to the attention of the

trial court. An error is plain if it is “obvious” and “but for the error, the outcome of the

trial clearly would have been otherwise.”         State v. Perez, 124 Ohio St.3d 122,

2009-Ohio-6179, 920 N.E.2d 104, ¶ 181, quoting State v. Barnes, 94 Ohio St.3d 21,

2002-Ohio-68, 759 N.E.2d 1240, and State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph two of the syllabus. Courts are to notice plain error under Crim.R.
52(B) “with the utmost caution, under exceptional circumstances, and only to prevent a

manifest miscarriage of justice.” Barnes at 27. This is that exceptional circumstance.

       {¶19} Because the state offered no evidence at trial to correspond to the allegation

contained in Count 4 of the indictment, a rational trier of fact could not have found the

essential elements of the crime proven beyond a reasonable doubt. Accordingly, we find

plain error in the trial court’s failure to grant a judgment of acquittal under Crim.R. 29(A)

regarding Count 4.2 Therefore, we reverse Watson’s conviction on Count 4 and remand

with instructions to the trial court to issue a judgment entry vacating Watson’s conviction.

       {¶20} In light of our resolution of Watson’s first assignment of error, the second

assignment of error, which asserts that the conviction was against the manifest weight of

the evidence, is rendered moot and we need not address it. App.R. 12(A)(1)(c).

       {¶21} Judgment reversed and remanded.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




        Crim.R. 29(A) provides that a court “shall,” “on its own motion,” “order the entry of a
       2


judgment of acquittal or one or more offenses charged in the indictment, information, or complaint, if
the evidence is insufficient to sustain a conviction of such offense or offenses.”
KATHLEEN ANN KEOUGH, JUDGE

KENNETH A. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
