author: EILEEN T. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Justin W. RIEDEL, Defendant-Appellant
    No. 104929
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: December 7, 2017
    Eric M. Levy, 55 Public Square, Suite 1600, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Gregory Paul, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: E.T. Gallagher, J., McCormack, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, J.:

{¶ 1} Defendant-appellant, Justin Riedel, appeals from his domestic violence and illegal cultivation of marijuana convictions following a jury trial. He raises the following assignments of error for our review:

1. The trial court erred when it failed to suppress evidence obtained as a result of an illegal search of Riedel's home which was conducted without a warrant and when consent to search was involuntary and under duress and where the trial court failed to consider whether the taint of the illegal entry into the home was extinguished prior to obtaining consent to search the home.
2. The trial court erred when it failed to suppress a written consent to search the home and evidence obtained thereof where Riedel was under arrest and had requested an attorney and the consent was obtained without providing Miranda warnings.
3. The trial court committed plain error when it gave a defective jury instruction for domestic violence.
4. Riedel was denied effective assistance of counsel when trial counsel failed to object to the improper domestic violence jury instruction.
5. The trial court erred in finding Riedel guilty of domestic violence and illegal cultivation of marijuana where the evidence presented at trial was insufficient to overcome Riedel's Crim.R. 29 motion and to support a conviction for either offense.
6. The trial court erred in finding Riedel guilty of domestic violence and illegal cultivation of marijuana as the manifest weight of the evidence did not support Riedel's convictions.

{¶ 2} After careful review of the record and relevant case law, we affirm Riedel's convictions.

I. Procedural and Factual History

{¶ 3} In February 2016, Riedel was named in a seven-count indictment charging him with kidnapping in violation of R.C. 2905.01(A)(3), with firearm and forfeiture specifications; felonious assault in violation of R.C. 2903.11(A)(1), with firearm and forfeiture specifications; aggravated menacing in violation of R.C. 2903.21(A), with a forfeiture specification; domestic violence in violation of R.C. 2919.25(A) ; illegal manufacture of drugs or cultivation of marijuana in violation of R.C. 2925.04(A) ; drug trafficking in violation of R.C. 2925.03(A)(2) ; and obstruction of official business in violation of R.C. 2921.31(A), with firearm and forfeiture specifications.

{¶ 4} In May 2016, Riedel filed a motion to suppress evidence along with several supplements. In his motion to suppress, Riedel argued that although he signed a consent to search form allowing police officers to search his home, it was the result of coercion and duress. He further argued that the arresting officers failed to provide him with Miranda warnings, and therefore, the trial court was required to suppress oral statements made to police after his arrest.

{¶ 5} Following a suppression hearing, the trial court granted Riedel's motion to suppress incriminating statements made following his arrest based on the failure to provide Miranda warnings. However, the trial court denied his motion to suppress evidence seized from his home. With respect to the validity of Riedel's consent, the trial court found that "the state met its burden of clear and positive evidence that Mr. Riedel voluntarily consented to the search of his home."

{¶ 6} In July 2016, the case proceeded to a jury trial, where the following evidence was adduced.

{¶ 7} In January 2016, Cleveland police officer David Wagner and his partner received a dispatch that an individual, later identified as Jasmine Rowe, had reported that a woman was being held against her will at Riedel's home in Cleveland, Ohio. When the officers arrived at the scene, they knocked on the front and side doors, but received no response. In an effort to obtain additional information, Officer Wagner spoke to Rowe directly and learned that the female victim, D.F., had contacted Rowe through Facebook and stated that she was "beaten, was handcuffed, and was being held against her will in [Riedel's] house."

{¶ 8} Based on the information gathered from Rowe, Officer Wagner "absolutely believed the victim was in [Riedel's] home." Officer Wagner testified that he then contacted his supervisor, Sergeant Tim Fitzpatrick, and asked him to come to the scene so that they could determine how to proceed. When Sergeant Fitzpatrick arrived at Riedel's home, Officer Wagner showed him the subject Facebook messages. Eventually, additional police officers and a SWAT team were called to the scene. Over the course of the next several hours, the police unsuccessfully attempted to contact Riedel on his cell phone. Just before the SWAT team was set to enter Riedel's home, Officer Wagner observed Riedel and D.F. walk out the side door of the home. Riedel was immediately apprehended by members of the SWAT team and was ushered into a nearby squad vehicle. The victim was taken to an EMS wagon for medical examination.

{¶ 9} Once SWAT secured the residence, Detective Todd Staimpel, of the Cleveland Police Department, conferred with Riedel in an effort to obtain his consent to search the residence. Det. Staimpel testified that he obtained a consent to search form from his vehicle and presented it to Riedel. According to Det. Staimpel:

We explained everything to him. He signed it, he gave us permission to go ahead and go in and search the premises. And that's what we did.

{¶ 10} Det. Staimpel testified that if Riedel had declined to sign the consent to search form, the police would not have searched his home until they obtained a search warrant.

{¶ 11} Upon receiving written consent, Det. Staimpel and two other detectives entered Riedel's home. Det. Staimpel testified that the detectives recovered three firearms containing live rounds, body armor, a police baton, a rocket launcher, marijuana plants, dried marijuana, and equipment consistent with a marijuana growth operation. The total weight of the marijuana removed from Riedel's home was 1,177 grams.

{¶ 12} Detective Darren Robinson of the Cleveland Police Department testified that he photographed the evidence discovered inside Riedel's home during the initial search. Det. Robinson stated that he photographed all evidence that may have been relevant to the purported crimes, including photos of the various weapons, bloody tissues, marijuana plants, and cultivation materials. In addition, Det. Robinson testified that he photographed the injuries sustained by D.F., including visible injuries to her face, nose, arms, knee, and shoulder.

{¶ 13} Rowe testified that she is friends with D.F. and was aware that D.F. and Riedel had previously been in a romantic relationship. Rowe testified that D.F. would often show up to her house "with bruises all over her." On one particular occasion in November 2015, D.F. had bruises on her back, legs, face, and shoulders. Following that incident, Rowe permitted D.F. to live with her. Rowe testified that D.F. stayed with her for a few months until she suddenly left just days before this incident.

{¶ 14} Approximately one day after D.F. left Rowe's home, she returned to retrieve clothing from her bedroom. Rowe testified that she was concerned because she knew D.F. had been spending time with Riedel. Rowe did not hear from D.F. for several days and decided to send her a Facebook message to ask why she had suddenly moved out. Rowe testified that shortly thereafter, she received a Facebook message from D.F. The message stated that Riedel was keeping her at his home against her will, that he was beating her, and that she had left Rowe's home because Riedel had threatened to kill Rowe and her children if she stayed. Rowe testified that she and D.F. exchanged several more messages before Rowe finally decided to contact the Cleveland police. Rowe stated that she debated whether to call the police but determined it was necessary once D.F. stated that she could not leave Riedel's home because she was handcuffed.

{¶ 15} D.F. testified on behalf of the state. Before discussing her relationship with Riedel, D.F. admitted that she has a criminal record stemming from her past addiction to heroin. She testified that she has three children but does not have custody of any of the children as a result of her criminal history and drug use. She further testified that she previously engaged in prostitution to pay for drugs, but stated that she is currently clean and sober.

{¶ 16} D.F. testified that she met Riedel in 2011 and that they soon began a romantic relationship that lasted approximately four years. However, D.F. clarified that they were not dating at the time of the incident. D.F. testified that during the course of their relationship, she lived with Riedel for "months" in 2013 before their relationship began to deteriorate when D.F. was sent to jail on unrelated charges. D.F. testified that when she got out of jail in April 2015, she and Riedel unsuccessfully attempted to repair their relationship. Thereafter, D.F. moved in with Rowe, and had been living with her for approximately four or five months.

{¶ 17} D.F. testified that on the Friday before Riedel's arrest, she was with Riedel when she received a phone call from another man. D.F. stated that Riedel immediately became upset and broke her phone. According to D.F., Riedel then "threw [her] down the steps" and "head butted [her] after [they] were at the bottom of the steps." D.F. testified that Riedel threatened to kill them both and placed a gun to her head. As a result, she was too frightened to attempt to leave Riedel's home that evening.

{¶ 18} The following night, D.F. convinced Riedel to drop her off at Rowe's house. D.F. testified that Riedel would only let her leave his home if she took a prepaid cell phone that he could contact her on. On Sunday morning, Riedel called D.F. and asked to pick her up. D.F. testified that she agreed to meet Riedel because she knew he would have harassed her all day if she had not allowed him to pick her up.

{¶ 19} On Sunday evening, one of D.F.'s prior "clients" called her on the prepaid cell phone, which caused Riedel to "freak" out. D.F. testified that Riedel punched her in the face with a closed fist and began screaming obscenities at her. Riedel then took D.F.'s phone and pretended to be her through text messages. D.F. testified that Riedel asked her prior client to meet him near Rowe's house at 10:30 p.m. When D.F.'s prior client arrived at the location of the meeting, Riedel pointed a gun at him and told him not to contact D.F. anymore. Riedel and D.F. returned to Riedel's house, where he continued to be verbally and physically abusive. D.F. testified that Riedel broke her nose and that she "had to try to get [her] nose to stop bleeding twice because it was really hard to get it to stop bleeding."

{¶ 20} On Monday morning, Riedel drove D.F. back to Rowe's house and made her get all of her belongings. Riedel informed D.F. that she would not be staying with Rowe anymore and was going to be living at his house. When they returned to Riedel's home, D.F. did not feel free to leave because Riedel was carrying a gun. When Riedel fell asleep, D.F. sent Rowe a Facebook message asking her to send help. D.F. testified that she was too scared to attempt to leave the house while Riedel was sleeping because she did not know if he was just pretending to be asleep. She admitted during cross-examination that her statement to Rowe that she was handcuffed was not true, but that "it was like a metaphor."

{¶ 21} At the close of the state's case-in-chief, Riedel moved the trial court to dismiss all charges pursuant to Crim.R. 29. After a brief discussion on the record, the trial court denied Riedel's motion.

{¶ 22} Riedel testified on his own behalf. He stated that he began dating D.F. in 2011 while she was living in a transitional housing facility. He stated that D.F. moved into his home after she was released from the facility, and stayed there for two weeks before she began contacting other men and using heroin.

{¶ 23} Riedel testified that on the weekend in question, D.F. contacted him and wanted to discuss their relationship and her desire to "get clean." Riedel stated that he made up his mind that he was "done with [their] relationship," and that he spent the majority of the weekend attempting to break up with D.F. Riedel further testified that he expressed his displeasure to D.F. about her living situation with Rowe because he believed Rowe was "promoting her prostitution and drug use."

{¶ 24} With respect to the injuries sustained to D.F.'s face, Riedel testified that D.F. accidently hit herself in the face while they were tussling over a cell phone she was using to facilitate her prostitution. Riedel stated that D.F. stuck her finger nail into his hand, which caused him to let go of her phone, and "she broke her own nose basically." Riedel stated that he immediately offered to take her to the hospital, but she refused medical assistance. Riedel further denied ever putting a gun to D.F.'s head. When questioned about the photographs depicting D.F.'s bruises, Riedel testified that he and D.F. both fell down the stairs together after D.F. head-butted him while he was attempting to break up with her in a "civil way."

{¶ 25} Regarding the marijuana discovered in his home, Riedel testified that almost four months before the night of the incident, a friend had dropped the marijuana plants off for Riedel "to hold on to." He stated that all of the growing equipment also belonged to his friend. Riedel testified that in the months the plants were in his home, he did not water them or provide them access to sunlight. He stated that the plants were diseased and were not able to be smoked. However, Riedel later admitted during his cross-examination that he "cut up" the marijuana that was discovered in a plastic container in his basement. He further admitted that he had read a book about marijuana cultivation just before his friend gave him the marijuana plants.

{¶ 26} Riedel testified that he "had no idea" that the police were outside his home until several friends contacted him and informed him that his house was on the news. Riedel stated that he initially thought the police were there for someone else in his neighborhood. However, once he realized the police were there for him, he immediately went outside with D.F. where he was arrested. Riedel stated that he did not prevent D.F. from leaving his house that evening and denied any allegations that he caused her physical harm or was holding her hostage.

{¶ 27} At the conclusion of trial, the jury found Riedel guilty of domestic violence and illegal cultivation of marijuana. He was found not guilty of all other counts. At sentencing, the trial court imposed a one-year term of community control sanctions.

{¶ 28} Riedel now appeals from his convictions.

II. Law and Analysis

A. Motion to Suppress

{¶ 29} In his first assignment of error, Riedel argues the trial court erred by failing to grant his motion to suppress evidence seized as a result of the warrantless search of his home.

{¶ 30} This court reviews a decision on a suppression motion under a mixed standard of review. "In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility." State v. Curry , 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). Therefore, a reviewing court must accept the trial court's findings of fact in ruling on a motion to suppress if the findings are supported by competent, credible evidence. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Accepting the facts as true, the reviewing court then must independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case. Id. An appellate court reviews the trial court's application of the law to its factual findings, however, based on a de novo standard of review.

State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 100.

{¶ 31} The Fourth Amendment to the United States Constitution guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Searches and seizures conducted outside of the judicial process, without a warrant based on probable cause, are per se unreasonable, unless they come within one of a few well-established exceptions. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). If evidence is obtained through actions that violate an accused's Fourth Amendment rights, exclusion of the evidence at trial is mandated. Mapp v. Ohio , 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

{¶ 32} One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to voluntary consent. Schneckloth at 219, 93 S.Ct. 2041. When seeking to rely on the consent exception of the warrant requirement, the state must show by "clear and positive" evidence that the consent was "freely and voluntarily" given. Bumper v. North Carolina , 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) ; see State v. Posey , 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988). The United States Supreme Court has held that "whether a consent to search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances." Schneckloth at 227, 93 S.Ct. 2041.

Important factors in determining whether a consent was voluntary are: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse to consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found.

State v. Washington , 8th Dist. Cuyahoga No. 86370, 2006-Ohio-568, 2006 WL 305454, ¶ 20, citing State v. Lattimore , 10th Dist. Franklin No. 03AP-467, 2003-Ohio-6829, 2003 WL 22966827.

{¶ 33} At the suppression hearing, Sergeant Ron Ross, of the Cleveland Police Department, testified that once Riedel was in police custody, he approached Riedel to seek his consent to secure and seize any evidence pertaining to the incident that occurred inside Riedel's home.

{¶ 34} During the suppression hearing, the state played video footage taken from Sergeant Ross's body camera, which "fairly and accurately depicts his interaction with [Riedel] that evening." The video footage shows that Riedel initially told Sergeant Ross that he would not sign a consent to search form. However, a short time later, Riedel asked Sergeant Ross to come back to talk about the consent to search. Riedel expressed his concerns, and Sergeant Ross answered each of Riedel's questions about the consent to search form. Sergeant Ross testified that he verbally read the terms of the consent to search form to Riedel and explained the implications of the form before Riedel signed it. Sergeant Ross testified that he witnessed Riedel sign and date the consent form before the detectives proceeded to conduct the search of the home.

{¶ 35} The consent form stated, in relevant part,

I, Justin Reidel, having been informed of my Constitutional Rights not to have a search made of the premises herein after mentioned without a search warrant, and of my right to refuse to consent to such a search, hereby authorize Det.
Fitzpatrick and/or Det. Lentz of the Cleveland Police Department to conduct a complete search of the premises that I own. These officers or agents are authorized by me to take from my premises any property, papers, or material which they desire. This written permission is being given by me to the above named persons voluntarily and without threats or promises of any kind. I also understand that I will be given a receipt for any property taken.

{¶ 36} During his cross-examination, Sergeant Ross conceded that Riedel was under arrest at the time he signed the consent to search form, and that he and other members of his team had entered Riedel's home before the consent was given while the SWAT team was securing the residence. Sergeant Ross explained that he and the members of his team "were not searching for evidence at that point."

{¶ 37} Det. Fitzpatrick testified at the suppression hearing that once Riedel was taken into custody, he was arrested and placed into the back of a zone car. Det. Fitzpatrick testified that he had no recollection of whether or not he "Mirandized" Riedel, but that he subsequently had conversations with other officers and detectives on the scene who indicated that he had, in fact, Mirandized him at the scene.

{¶ 38} With respect to the consent to search obtained from Riedel, Det. Fitzpatrick testified that he was not directly involved, but understood that Sergeant Ross "talked to the defendant, walked away, then defendant called him back to the car" and signed the consent to search form. Det. Fitzpatrick characterized the interaction between the officers and Riedel as "conversational." He stated that the conversation was "low key" and did not involve "yelling."

{¶ 39} Riedel testified at the suppression hearing and admitted that he signed the consent to search form. However, Riedel testified that he initially told the detectives that "he wanted an attorney" and that he felt he "was coerced to sign [the consent to search form]." Riedel explained that he "was in fear of his life" and believed Sergeant Ross was "going to make it better for [him]" if he signed the form. Riedel further alleged that, at some point, a detective wearing plain clothes "pulled [him] three houses down by himself, threw [him] on the back of a police car and said, 'sign this paper, I'm going to make it worse for you if you don't.' "

{¶ 40} At the conclusion of the suppression hearing, the trial court made the following findings:

At its peak, there were 25 to 30 officers at Mr. Riedel's home in response to the stand off, approximately seven riflemen, uniformed officers, uniformed SWAT officers and countless police cars with lights flashing.
The police presence and resulting show of force, which were present when Mr. Riedel made the decision to sign the consent form were there as a result of his own actions inside the home.
The officers were not there to intimidate Mr. Riedel into signing a consent to search form. They were there in response to a situation he is alleged to have created. We also have the body camera footage of Sergeant Ron Ross, which was admitted during the hearing as State's Exhibit.
The footage shows the Defendant handcuffed in the back seat of a police car where he was placed immediately after his exit from the home. Sergeant Ross explained the consent to search form. He also told Mr. Riedel that they were going to get a search warrant for the home regardless.
Mr. Riedel asked a few questions and told Sergeant Ross that he would not sign, and Sergeant Ross walked away. A short time later the Defendant asked Sergeant Ross to come back to talk about the consent to search. What ensued was a cordial, casual conversation during which time Mr. Riedel expressed concern about his cat and what it actually meant to consent to the search of his home.
Sergeant Ross answered Mr. Riedel's questions and read the consent form to him. Mr. Riedel acknowledged that it would be easier for the police officers and agreed to sign. Sergeant Ross removed him from the back of a police car, removed his handcuffs, and Mr. Riedel signed the form in the back of the car.
Viewing the body camera footage and the fact that Mr. Riedel asked Sergeant Ross to come back, to me shows that the State has met its burden of clear and positive evidence that Mr. Riedel voluntarily consented to the search of his home. I'm going to deny the Defendant's motion to suppress the results of the search of the home.

{¶ 41} On appeal, Riedel argues that the testimony presented at the suppression hearing demonstrates that "his consent to search his home was given under duress and was not voluntary when reviewed under the totality of the circumstances test."

{¶ 42} As stated, Riedel was under arrest when he signed the consent form. However, the fact of arrest does not necessarily render a consent involuntary. "The fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search." United States v. Watson , 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). The question becomes whether the duress present in a particular case exceeds the normal duress inherent in any arrest. State v. Simmons , 61 Ohio App.3d 514, 573 N.E.2d 165 (9th Dist.1989).

{¶ 43} In light of the evidence presented at the suppression hearing, we find Riedel cannot prevail on his argument that he did not knowingly or voluntarily consent to have his home searched. The evidence clearly demonstrates that prior to signing the consent to search form, Sergeant Ross explained the rights Riedel was waiving and that he had the right to refuse consent. During the suppression hearing, Riedel acknowledged that he believed it would be in his best interests to consent to the search and that he signed the consent to search form presented to him. The fact that Riedel signed a written waiver is strong proof that the waiver was valid. See State v. Jackson , 5th Dist. Richland No. 2012-CA-20, 2012-Ohio-5548, 2012 WL 5989511, ¶ 35 (determining that defendant's signing of a written consent form was "strong proof" that she voluntarily gave police officers consent to search a house).

{¶ 44} In an effort to demonstrate coercive police conduct, Riedel relies on the Sixth District's decision in State v. Jackson , 110 Ohio App.3d 137, 673 N.E.2d 685 (6th Dist.1996), for the proposition that once Riedel denied the detective's initial request for consent, the subsequent requests for consent began "to take on a coercive tone." Id. at 143, 673 N.E.2d 685.

{¶ 45} After careful review, we find no merit to Riedel's reliance on Jackson . Unlike the factual scenario presented in Jackson , Riedel was not subjected to an officer's continued pursuit for consent once the first request for permission to search was denied. Rather, the evidence presented at the suppression hearing demonstrates that it was Riedel who called Sergeant Ross back to further discuss the consent to search form after he had originally declined to sign the form. Both Riedel and Sergeant Ross stated that the conversation was "cordial" and that Riedel agreed to sign the consent form because he believed it was in his best interests to cooperate with the police. Sergeant Ross testified that he carefully explained the consent to search form to Riedel and advised him that he had the right to refuse consent. Thus, we find Sergeant Ross's interaction with Riedel in this case does not suggest a "coercive tone."

{¶ 46} We recognize that Riedel alleged at the suppression hearing, for the first time, that a detective "threw" him against a patrol car and threatened to make things worse for him if he did not consent to the search. Clearly, such an act, if believed, would constitute coercion or duress. However, the evaluation of evidence and the credibility of the witnesses are issues for the trier of fact. Deferring to the trial court's assessment of the witnesses credibility, as we must, we are unable to conclude that the trial court erred by giving little weight to Riedel's allegations against the unidentified detective.

{¶ 47} Under the totality of the circumstances, we find there was competent, credible evidence presented at the suppression hearing to show that Riedel freely and voluntarily consented to the search when he signed the consent to search form. Accordingly, we find the trial court did not err by denying Riedel's motion to suppress evidence seized as a result of the detective's warrantless search of his home.

{¶ 48} We note that Riedel further argues on appeal that the trial court failed to consider whether the SWAT team's initial protective sweep of his home was unlawful and tainted Riedel's subsequent consent. However, our review of Riedel's motion to suppress, his supplemental motions, and the arguments raised at the suppression hearing reveals that this specific argument was not raised nor considered by the trial court. "It is well-settled law that issues not raised in the trial court may not be raised for the first time on appeal because such issues are deemed waived." State v. Barrett , 10th Dist. Franklin No. 11AP-375, 2011-Ohio-4986, 2011 WL 4489169, ¶ 13. This waiver rule applies to arguments not asserted either in a written motion to suppress or at a suppression hearing. See State v. Massingill , 8th Dist. Cuyahoga No. 92813, 2009-Ohio-6221, 2009 WL 4173869, ¶ 20 ("the failure to raise suppression claims in the trial court prior to the commencement of trial precludes raising the argument for the first time on appeal."). Accordingly, Riedel waived this unlawful-protective-sweep argument for purposes of this appeal by failing to raise it in the trial court in any manner.

{¶ 49} Riedel's first assignment of error is overruled.

B. Failure to Provide Miranda Warnings

{¶ 50} In his second assignment of error, Riedel argues "the trial court erred when it failed to suppress a written consent to search the home and evidence obtained thereof where Riedel was under arrest and had requested an attorney and the consent was obtained without providing Miranda warnings."

{¶ 51} The Fifth Amendment provides that "no person * * * shall be compelled in any criminal case to be a witness against himself." "The Fifth Amendment privilege against compulsory self-incrimination 'protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.' " Hiibel v. Sixth Judicial Dist. Ct. of Nevada, Humboldt Cty. , 542 U.S. 177, 195, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004), quoting Kastigar v. United States , 406 U.S. 441, 445, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

{¶ 52} In Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that, in order to protect a defendant's right under the Fifth Amendment against compelled self-incrimination, before police initiate custodial interrogation, they must advise a defendant that, in addition to other rights, he has the right to remain silent and the right to counsel. Id. at 1624-1627. However, "[i]n order to merit the protections of the Fifth Amendment privilege against self-incrimination, the evidence must be both 'compelled' by the state and of a 'testimonial' or 'communicative' nature." Schmerber v. California , 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

{¶ 53} In this case, Riedel asserts that Sergeant Ross's request for consent to search after Riedel had requested to speak to an attorney was an interrogation within the meaning of the Fifth Amendment. Riedel further contends that because Miranda warnings were not given to him prior to the search of his home, "he could not have voluntarily consented to the search of his home." After careful review, we find no merit to Riedel's position.

{¶ 54} This court has held that even after a suspect has invoked his right to counsel, the police are not prohibited from asking a suspect to consent to a search, as a request for consent to search is not an interrogation under Miranda . State v. Bolton , 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169, 2012 WL 171039, ¶ 23, citing United States v. LaGrone , 43 F.3d 332 (7th Cir.1994). Moreover, the weight of authority in Ohio holds that prior Miranda warnings are not required to validate consent searches, even when the consent is obtained after the defendant is effectively in custody. See State v. Lee , 2d Dist. Greene No. 96 CA 115, 1997 WL 674657 (Oct. 31, 1997) ; State v. Clelland , 83 Ohio App.3d 474, 615 N.E.2d 276 (4th Dist.1992) ; State v. Frank , 2d Dist. Montgomery No. 18977, 2002 WL 628273 (Apr. 19, 2002) ; State v. Tobias , 2d Dist. Montgomery No. 17975, 2000 WL 1299535 (Sept. 15, 2000) ; State v. Frazier , 3d Dist. Shelby Nos. 17-11-06 and 17-11-07, 2013-Ohio-142, 2013 WL 221511.

However one interprets Miranda , what becomes subject to exclusion when a warning is not given although the situation calls for one, are "statements, whether exculpatory or inculpatory, stemming from custodial interrogation." A consent to search, as such, is neither testimonial, nor communicative in the Fifth Amendment sense. Miranda warnings are intended to inform a suspect of his or her rights prior to making statements to the police and have no direct bearing on the decision to consent to a search.

Lee at *14, citing 3 LaFave, Search and Seizure, Section 8.2(j), at 691 (1996).

{¶ 55} Accordingly, the absence of Miranda warnings after the arrest and prior to the search did not invalidate Riedel's consent to search his home. See Clelland . Having previously determined that Riedel's consent was voluntary, we find the failure to give Miranda warnings does not require suppression of the "fruit" of an otherwise valid consensual search.

{¶ 56} Riedel's second assignment of error is overruled.

C. Jury Instructions

{¶ 57} In his third assignment of error, Riedel argues the trial court committed plain error when it gave a defective jury instruction for domestic violence.

{¶ 58} As an initial matter, we note that Riedel did not object to the challenged jury instruction and has waived all but plain error. Crim.R. 52 ; State v. Long , 53 Ohio St.2d 91, 94, 372 N.E.2d 804 (1978). An erroneous jury instruction does not rise to the level of plain error unless it is clear that absent the error, the jury's verdict would have been different. State v. Williams , 8th Dist. Cuyahoga No. 94616, 2011-Ohio-925, 2011 WL 743085, ¶ 36. Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Long at paragraph three of the syllabus; Crim.R. 52(B).

{¶ 59} In this case, the trial court gave the jury the following instruction on domestic violence:

Before you can find the defendant guilty of domestic violence, you must find beyond a reasonable doubt that on or about the 24th day of January 2016, in Cuyahoga County, Ohio, the defendant did knowingly cause or attempt to cause physical harm to [D.F.], a family or household member.
* * *
A family or household member means, a person who is residing with the defendant, or has resided with the defendant and/or is the spouse of, or person living as the spouse of or former spouse of * * * the defendant.
* * *
Reside means to live in a place for an extended period of time.

(Emphasis added.)

{¶ 60} Riedel argues that the trial court's instruction to the jury concerning the definition of a "household member" was defective and inconsistent with the language set forth in R.C. 2919.25(F). Relevant to the arguments raised in this assignment of error, R.C. 2919.25(F) states:

(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 * * *.

{¶ 61} Riedel contends that by improperly using the phrase "and/or" where the statute does not, the trial court improperly modified the term "household member" to include someone who "has resided with the defendant" or is the spouse, person living as the spouse, or former spouse of the defendant. (Emphasis added.) In other words, Riedel claims that the trial court "changed the elements of the offense" and permitted the jury to find him guilty of domestic violence so long as they found D.F. resided with him, without consideration of whether she was a "person living as a spouse."

{¶ 62} After careful review of the record, we agree that the trial court provided a defective instruction on the definition of household member. However, we do not find that a manifest miscarriage of justice occurred in this case. Here, the record reflects that upon instructing the jury in open court, the trial court informed the jury that it would provide it with "the exhibits, verdict forms, and the special instructions of law in this case" for their review in the jury room. The trial court encouraged the jury to review the written jury instructions and, if it had any questions about the instructions, it was required to "discuss it in the privacy of the jury room." The court further advised the jury that if there was a disagreement "as to the meaning of these instructions," it was "possible to review those matters by a request to the Court."

{¶ 63} In this case, the written jury instructions submitted to the jury contained the proper definition of "household member" as defined by R.C. 2919.25(F). Moreover, the jury verdict form stated, in relevant part:

[W]e, the jury in this case, being duly impaneled and sworn, do find the defendant, Justin Riedel, guilty of domestic violence, in violation of 2919.25(A) of the Ohio Revised Code as charged in Count 4 of the indictment.

Thus, the jury verdict form referred to the indictment, which also included the proper definition of "household member."

{¶ 64} Under these circumstances, it appears the jury considered, and ultimately determined, that D.F. (1) had resided with Riedel, and (2) was "a person living as a spouse." See State v. Daley, 3d Dist. Seneca No. 13-13-26, 2014-Ohio-2128, 2014 WL 2156621. The jury was provided with the correct definition of household member in both the written instructions and the jury verdict forms utilized during the jury's deliberations. While the challenged instruction contained a misstatement, we are unable to conclude that the outcome of the trial clearly would have been different had a proper instruction been given. Accordingly, we find the trial court's jury instruction on domestic violence did not rise to the level of plain error.

{¶ 65} Riedel's third assignment of error is overruled.

D. Effective Assistance of Counsel

{¶ 66} In his fourth assignment of error, Riedel argues he was denied effective assistance of counsel when trial counsel failed to object to the trial court's instruction on the elements of domestic violence.

{¶ 67} To establish ineffective assistance of counsel, a defendant must demonstrate (1) that counsel's performance fell below an objective standard of reasonable representation, and (2) that he was prejudiced by that performance. Strickland v. Washington , 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland at 694, 104 S.Ct. 2052.

{¶ 68} The failure to prove either prong of the Strickland two-part test makes it unnecessary for a court to consider the other prong. State v. Madrigal , 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000). "In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice * * * that course should be followed." Strickland at 697, 104 S.Ct. 2052.

{¶ 69} Having previously determined that the outcome of the trial would not have been different had a proper instruction been given, we find Riedel was not prejudiced by defense counsel's failure to object to the trial court's domestic violence instruction.

{¶ 70} Riedel's fourth assignment of error is overruled.

E. Sufficiency of the Evidence

{¶ 71} In his fifth assignment of error, Riedel argues "the trial court erred by denying his Crim.R. 29 motion for acquittal and thereafter finding him guilty of domestic violence and illegal cultivation of marijuana where there was insufficient evidence to support those findings."

{¶ 72} A Crim.R. 29 motion challenges the sufficiency of the evidence. When considering a challenge of the sufficiency of the evidence, a reviewing court examines the evidence admitted at trial and determines whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "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." Id. A reviewing court is not to assess "whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction." State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

{¶ 73} The state may use direct evidence, circumstantial evidence, or both, in order to establish the elements of a crime. See State v. Durr , 58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Circumstantial evidence is "proof of facts or circumstances by direct evidence from which the trier of fact may reasonably infer other related or connected facts that naturally or logically follow." State v. Seals , 8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, 2015 WL 628352, ¶ 32, citing State v. Beynum , 8th Dist. Cuyahoga No. 69206, 1996 WL 273777 (May 23, 1996) ; see also State v. Hartman , 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, 2008 WL 2833295, ¶ 37.

{¶ 74} Circumstantial evidence and direct evidence inherently possess the same probative value. Jenks at paragraph one of the syllabus. "[A]ll that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt." Id. at 272, 574 N.E.2d 492. " 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying, and persuasive than direct evidence.' " State v. Hawthorne , 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, 2011 WL 5869891, ¶ 9, quoting Michalic v. Cleveland Tankers, Inc. , 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). And circumstantial evidence alone is sufficient to support a conviction. State v. Coleman , 8th Dist. Cuyahoga No. 102966, 2016-Ohio-297, 2016 WL 541457, ¶ 22.

1. Illegal Cultivation

{¶ 75} In this case, Riedel was convicted of illegal cultivation of marijuana in violation of R.C. 2925.04(A). The statute provides that "[n]o person shall knowingly cultivate marijuana or knowingly manufacture or otherwise engage in any part of the production of a controlled substance."

{¶ 76} R.C. 2901.22(B) sets forth the definition of "knowingly," stating:

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.

Pursuant to R.C. 2925.01(F), the term "cultivate" includes acts of "planting, watering, fertilizing, or tilling." R.C. 2925.01(F).

{¶ 77} On appeal, Riedel argues that "the evidence offered at trial was insufficient to establish that he knowingly cultivated marijuana." We disagree. At trial, Det. Robinson identified state's exhibit Nos. 1.17-1.24 as photographs he took inside Riedel's home on the night of the incident. Det. Robinson testified that a total of "six different strands of marijuana" were discovered in Riedel's basement and bedroom. The photographs of the discovered marijuana depict potted plants in various stages of maturity and growth, a 13-gallon garbage bag full of marijuana cuttings, "dried" marijuana that was stored in a plastic container, and marijuana strands that were hung to dry from the basement rafters. Det. Staimpel testified that while some of the marijuana was "dried to the point that * * * it was blowing all over the house," some of the plants were "fresh" or "mature." The photograph of the potted marijuana plants reflects that the plants were positioned under a "Growstone" grow light and next to a nearby circulating fan.

The total weight of the marijuana seized from Riedel's home was approximately 1,177 grams. Based on the foregoing evidence, Det. Staimpel testified that the marijuana and related equipment discovered inside Riedel's home was "consistent with a growth operation."

{¶ 78} Viewing this evidence in a light most favorable to the state, we find a reasonable trier-of-fact could find beyond a reasonable doubt that Riedel knowingly cultivated marijuana. Although the state was unable to present direct evidence of specific acts of cultivation, there was sufficient circumstantial evidence "from which the trier of fact could infer or derive by reasoning," that Riedel planted, watered, fertilized, or tilled the marijuana discovered inside his home.

2. Domestic Violence

{¶ 79} Riedel was further convicted of domestic violence in violation of R.C. 2919.25(A), which states that "[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member." R.C. 2901.01(A)(3) defines "physical harm to persons" as "any injury, illness, or other physiological impairment, regardless of its gravity or duration."

{¶ 80} As previously discussed, R.C. 2919.25(F)(1)(a)(i) defines "family or household member" as a spouse, a person living as a spouse, or a former spouse of the offender, who is residing with or has resided with the offender.

{¶ 81} A "person living as a spouse" includes "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 offender within five years prior to the date of the alleged commission of the act in question. " (Emphasis added.) R.C. 2919.25(F)(2).

{¶ 82} On appeal, Riedel does not challenge the sufficiency of the evidence going to the element of physical harm. However, he contends that there was insufficient evidence to support his domestic violence conviction because the state failed to demonstrate that D.F. was a "person living as a spouse." He contends that the state presented no evidence that D.F. had " cohabited with [him] within five years prior to the date of the alleged [incident]."

{¶ 83} In State v. Williams , 79 Ohio St.3d 459, 465, 683 N.E.2d 1126 (1997), the Ohio Supreme Court addressed the definition of "cohabitation" as follows:

[W]e conclude that the essential elements of "cohabitation" are (1) sharing of familial or financial responsibilities and (2) consortium. R.C. 2919.25(E)(2) and related statutes. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be decided on a case-by-case basis by the trier of fact.

{¶ 84} In State v. McGlothan , 138 Ohio St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021, ¶ 15, the Ohio Supreme Court clarified its definition of cohabitation, finding that when the defendant and the victim share the same residence, the state does not have to prove cohabitation through evidence of financial or familial responsibilities and consortium. Id.

{¶ 85} With respect to the factual scenario presented in this case, it is important to note that "the prosecution is only required to prove the elements set forth in the domestic violence statute."

Cleveland v. Johnson , 8th Dist. Cuyahoga No. 100662, 2014-Ohio-4083, 19 N.E.3d 604, ¶ 14. As the Supreme Court acknowledged in McGlothan , the legislature intended " 'to protect persons from violence by close family members or residents of the same household' and 'to offer protections to a wide class of persons.' " McGlothan at ¶ 17, quoting State v. Carswell , 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 32, 36. In furtherance of this legislative intent, the General Assembly extended the protections afforded under R.C. 2919.25(A) to victims who have cohabited with the defendant "within five years prior to the date of the commission of the act in question."

{¶ 86} In this case, D.F. testified that she lived with Riedel as boyfriend and girlfriend for "several months" in 2013. Although Riedel and D.F. were not cohabiting at the time of the assault, there was sufficient evidence that they shared a residence within five years of the incident, and therefore, had cohabited within the five-year period provided for in the statute. See Johnson at ¶ 14 (finding that the victim, who was not presently cohabiting with defendant at the time of the assault, was a person "living as a spouse" and a household member" where the evidence showed that the victim had previously lived with the defendant for two years within the five-year period provided under R.C. 2919.25(F)(2) ). Because there was evidence that Riedel and D.F. had lived together, the state was not required to prove cohabitation through evidence of financial or familial responsibilities and consortium. Id., citing McGlothan , 138 Ohio St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021, at ¶ 15.

{¶ 87} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that D.F. was a household member and that Riedel knowingly caused her physical harm. We hold, therefore, that the state met its burden of production regarding each element of the crime of domestic violence.

{¶ 88} Based on the foregoing, we find Riedel's illegal cultivation of marijuana and domestic violence convictions were supported by sufficient evidence. The trial court did not err by denying Riedel's Crim.R. 29 motion for acquittal.

{¶ 89} Riedel's fifth assignment of error is overruled.

F. Manifest Weight of the Evidence

{¶ 90} In his sixth assignment of error, Riedel argues his convictions were against the manifest weight of the evidence.

{¶ 91} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. A reviewing court "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, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be reversed as against the manifest weight of the evidence only in the most "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 92} Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley , 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, 2012 WL 2355778, ¶ 14, citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶ 93} In challenging the weight of the evidence supporting his illegal cultivation of marijuana conviction, Riedel argues that the evidence presented at trial supported his position that the marijuana plants discovered in his home were dropped off by a friend. He contends that he took no action to cultivate the marijuana.

{¶ 94} With respect to his domestic violence conviction, Riedel asserts that the allegations raised by D.F. were not credible. Riedel notes that the evidence presented at trial demonstrated that D.F. "was engaged in working as a prostitute and was heavily addicted to opiates." Moreover, he argues that the "minimal" injuries to her face were not consistent with her testimony that Riedel "punched her with a closed fist over and over again." Instead, Riedel suggests that "it is more probable that both D.F. and Riedel were injured while tussling over a phone which D.F. was using to attempt to prostitute herself and then falling down the stairs."

{¶ 95} After reviewing the record, we cannot say that this is the exceptional case in which the trial court clearly lost its way and created such a manifest miscarriage of justice that Riedel's conviction must be reversed and a new trial ordered. The jury, as the trier of fact, was in the best position to weigh the credibility of the witnesses and was free to reject Riedel's contention that the growth operation discovered in his basement and personal bedroom was brought there by his friend and that he had no involvement in the cultivation of the 1,177 grams marijuana found in his home. Furthermore, the jury was free to give substantial weight to D.F.'s testimony that Riedel repeatedly struck her in the face with a closed fist and threw her down stairs despite her past criminal activity and drug use. The state presented ample evidence of D.F.'s injuries, including photographs of her broken nose and the bruises found on her arms, knee, and shoulder.

{¶ 96} In short, Riedel's convictions are not against the manifest weight of the evidence simply because the trial court chose to believe the state's version of the events rather than Riedel's theory. See State v. Nelson , 8th Dist. Cuyahoga No. 104336, 2017-Ohio-5568, 2017 WL 2814007, ¶ 58. Accordingly, Riedel's convictions are not against the manifest weight of the evidence.

{¶ 97} Riedel's sixth assignment of error is overruled.

{¶ 98} Judgment affirmed.

TIM McCORMACK, P.J., and

PATRICIA ANN BLACKMON, J., CONCUR


source: Caselaw Access Project

author: SADLER, J.

license: Public Domain

text:
    Timothy GRIESER et al., Plaintiffs-Appellants, v. Leonard R. JANIS, D.P.M. et al., Defendants-Appellees.
    No. 17AP-3
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 7, 2017
    On brief: David F. Rudwall, for appellants. Argued: David F. Rudwall.
    On brief: Freund, Freeze & Arnold, Mark L. Schumacher, and Bartholomew T. Freeze, Columbus, for appellees. Argued: Bartholomew T. Freeze.
    DECISION
   SADLER, J.

{¶ 1} Plaintiffs-appellants, Timothy ("Timothy") and Meredith ("Meredith") Grieser (collectively "appellants"), husband and wife, appeal from a judgment of the Franklin County Court of Common Pleas in favor of defendants-appellees, Leonard R. Janis, D.P.M., and Total Foot and Ankle of Ohio, Inc. For the reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Timothy worked as a golf professional for the Reid Park Golf Course in Springfield, Ohio. He became a member of the Professional Golf Association in 2008. He married Meredith in 2000. Timothy testified that he began experiencing pain and stiffness in his ankle in 2005 or 2006. Timothy went to see his family physician, Alper Sarihan, M.D., regarding the ankle pain, and Dr. Sarihan ordered an MRI of Timothy's ankle. According to Timothy, Jeffrey Gittins, D.O., reviewed the resulting images and concluded that Timothy had a lesion on his ankle, and he recommended the removal of the lesion arthroscopically. Dr. Gittins told Timothy that he could "drill some holes into [his] bone where the bad bone used to be, and that would bleed and form a material that would act as [his] cartilage in that joint area." (Tr. Vol. 3 at 605-06.) Timothy testified that the surgery "seemed like a good idea. It was an opportunity to try to stay out in front of the issue that was starting." (Tr. Vol. 3 at 606.)

{¶ 3} According to Timothy, the surgery "[s]eemed to work for a while," but by the end of the next golf season, the ankle became "more irritated again." (Tr. Vol. 3 at 607.) When Timothy went back to see Dr. Gittins, he recommended trying the surgery again. Timothy elected to get a second opinion so he went to back to Dr. Sarihan. As a result of his appointment with Dr. Sarihan, Timothy was referred to Dr. Janis at Total Foot and Ankle of Ohio, Inc. Timothy remembers little about his first visit with Dr. Janis other than Dr. Janis using the terms "bone graft" and "good bone." (Tr. Vol. 3 at 610.) According to Timothy, when he went back to see Dr. Janis a second time, Dr. Janis described the surgical procedure he recommended as follows: "He would go in and open up the ankle joint in that area and take the cadaver bone and take a piece of it out of the cadaver and cut out the bad bone that I still had inside my joint and replace it." (Tr. Vol. 3 at 611.) Timothy did not recall Dr. Janis ever mentioning that he intended to work on Timothy's ligaments.

{¶ 4} Dr. Janis subsequently performed a surgical procedure on Timothy's ankle. Timothy testified that several months after the surgery, he experienced no improvement in either the range of motion or functionality of his ankle, even though he had faithfully undertaken a course of physical therapy. Timothy testified that the pain and stiffness in his ankle worsened.

{¶ 5} According to Timothy, Dr. Janis informed him that an MRI showed he now had a lesion on both sides of his ankle bone. Timothy testified that Dr. Janis raised the subject of total ankle replacement surgery. Timothy did not know that such a procedure could be performed on the ankle joint. Timothy testified that Dr. Janis told him the total ankle replacement"would alleviate the pain and give me more mobility, give me more of the lifestyle that I wanted to still lead at that age." (Tr. Vol. 3 at 618.) Dr. Janis also told Timothy that ankle fusion surgery was an option, but Timothy rejected that course of treatment because it would permanently limit his ankle flexibility and functionality.

{¶ 6} After reviewing the information regarding total ankle replacements on Dr. Janis's website and other websites, Timothy elected to have total ankle replacement surgery. In November 2009, Dr. Janis performed total ankle replacement surgery on Timothy's left ankle, using a Salto Talaris prosthesis. Timothy testified that after the surgery and following the completion of physical therapy, "it was almost like my ankle was locked in place and it hurt 100 percent of the day. * * * I thought I knew what pain was until I had this done. * * * I was taking eight Vicodin a day just to get through the day." (Tr. Vol. 3 at 621-22.) When Dr. Janis was subsequently unable to provide any relief for Timothy's increasing ankle pain and lack of flexibility, Timothy went back to Dr. Sarihan seeking a referral to another physician. Dr. Sarihan referred Timothy to Ethan Thompson, an orthopedic surgeon in Springfield, Ohio. Dr. Thompson took x-rays of Timothy's ankle and then referred him to Gregory Berlet, M.D. Dr. Berlet specialized in ankle surgery.

{¶ 7} After consulting with Dr. Berlet, Timothy agreed to undergo surgical revision of his ankle prosthesis. Dr. Berlet replaced the Salto Talaris prosthesis installed by Dr. Janis with a device known as an INBONE prosthesis. According to Timothy, after healing from the surgery performed by Dr. Berlet, "[t]he pain was not nearly as bad as it was. I stopped taking all of the big pain medications. The movement seemed to be a lot better, and when I moved, I didn't fall down or anything like that. I seemed to be stable." (Tr. Vol. 3 at 626.) Timothy testified that after the revision with Dr. Berlet, his ankle improved "in all aspects, going to the mall, walking down the mall, walking at the zoo with the kids or the family." (Tr. Vol. 3 at 627.)

{¶ 8} On July 15, 2011, appellants filed a complaint against Dr. Janis and Total Foot and Ankle of Ohio, Inc., alleging medical negligence, lack of informed consent, and loss of consortium. On November 3, 2011, the trial court dismissed the complaint, without prejudice, due to appellants' failure to file an affidavit of merit as required by Civ.R. 10(D)(2). (Compl. at 2.) On November 2, 2012, appellants refiled their complaint against Dr. Janis and Total Foot and Ankle of Ohio, Inc., alleging the same claims. The affidavit of Jonathan J. Paley, M.D., is attached to the refiled complaint as an exhibit.

{¶ 9} On May 9, 2016, the parties tried the case to a jury. The jury found in favor of appellants and awarded damages against appellees of $140,000 for Timothy and $10,000 for Meredith. The parties submitted three interrogatories to the jury, including an interrogatory which asked the jurors to "specifically list the act(s) of negligence which you state Dr. Janis committed." (Jury Interrog. No. 2, filed May 19, 2016.) All seven jurors answered the interrogatory as follows: "Deviation from standard of care with malplacement of a total ankle replacement in a 33-year-old patient." (Jury Interrog. No. 2.)

{¶ 10} On May 24, 2016, the trial court issued a judgment entry in accordance with the jury verdict. On June 21, 2016, appellees filed a motion for judgment notwithstanding the verdict ("JNOV") pursuant to Civ.R. 54. Appellants filed a motion for prejudgment interest, pursuant to R.C. 1343.03(C), on that same date. On August 26, 2016, the trial court issued a decision granting appellees' motion for JNOV.

{¶ 11} On September 13, 2016, the trial court issued both a "Final Judgment Entry" in favor of appellees, and a judgment entry denying, as moot, appellants' motion for prejudgment interest. On October 11, 2016, appellants filed a motion for new trial pursuant to Civ.R. 59. Appellants' arguments in support of their motion for new trial focused on the trial testimony of Dr. Berlet. According to appellants, appellees' trial counsel and Dr. Berlet's own private counsel improperly influenced Dr. Berlet's trial testimony. More particularly, appellants alleged that these lawyers discouraged Dr. Berlet from providing an expert opinion at trial regarding the applicable standard of care, whether Dr. Janis breached that standard of care, and proximate cause. On December 2, 2016, the trial court issued a decision and entry denying appellants' motion for new trial.

{¶ 12} On January 1, 2017, appellants filed a notice of appeal to this court from the following trial court judgments: "the September 13, 2016 Final Judgment Entry , finalizing the Decision Granting Defendants' Motion For Judgment Notwithstanding the Verdict that was rendered on August 26, 2016 [and] the Decision & Entry Denying Plaintiffs' Motion for New Trial , filed * * * December 2, 2016." (Emphasis sic.) (Notice of Appeal at 1.)

II. ASSIGNMENT OF ERROR

{¶ 13} Appellants assign the following as trial court error:

The trial court reversed the jury verdict and granted defendant's motion for judgment notwithstanding the verdict.

III. STANDARD OF REVIEW

{¶ 14} A motion for JNOV is governed by Civ.R. 50(B), which provides:

Whether or not a motion to direct a verdict has been made or overruled and not later than twenty-eight days after entry of judgment, a party may serve a motion to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion. * * *
* * *
If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence. If no verdict was returned the court may direct the entry of judgment or may order a new trial.

{¶ 15} The test applied by a trial court in ruling on a motion for JNOV is the same test to be applied on a motion for a directed verdict. Kenner v. Grant/Riverside Med. Care Found. , 10th Dist. No. 15AP-982, 2017-Ohio-1349, 2017 WL 1337548, ¶ 22, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 25 ; Posin v. A.B.C. Motor Court Hotel, Inc. , 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). "In reviewing a motion for JNOV, the evidence 'must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied.' " Kenner at ¶ 22, quoting Osler v. Lorain , 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986), citing Posin at 275, 344 N.E.2d 334. " 'Neither the weight of the evidence nor the credibility of the witnesses is proper consideration for the trial court.' " Kenner at ¶ 22, quoting Smith v. Superior Prod., LLC , 10th Dist. No. 13AP-690, 2014-Ohio-1961, 13 N.E.3d 664, ¶ 11, citing Posin at 275, 344 N.E.2d 334. "Thus, '[a] motion for judgment notwithstanding the verdict is used to determine only one issue: whether the evidence is totally insufficient to support the verdict.' " Kenner at ¶ 22, quoting Harper v. Lefkowitz , 10th Dist. No. 09AP-1090, 2010-Ohio-6527, 2010 WL 5551001, ¶ 8. "A ruling on a motion for JNOV is a question of law, reviewed de novo on appeal." Kenner at ¶ 22, quoting Eastley at ¶ 25 (stating that in reviewing such motions, "the court must determine whether any evidence exists on every element of each claim or defense for which the party has the burden to go forward").

IV. LEGAL ANALYSIS

A. Appeal From the December 2, 2016 Judgment

{¶ 16} Though appellants' notice of appeal identifies the December 2, 2016 decision and judgment entry denying appellants' motion for new trial as one of the orders appealed from, appellants' merit brief does not include an assignment of error relating to the December 2, 2016 judgment. Pursuant to App.R. 12(A)(1)(b), an appellate court must "[d]etermine the appeal on its merits on the assignments of error set forth in the briefs under App.R. 16, the record on appeal under App.R. 9, and, unless waived, the oral argument under App.R. 21." Here, appellants' sole assignment of error makes no reference to trial court error regarding the denial of appellees' motion for new trial. Neither appellants' merit brief nor their reply brief make any argument regarding the trial court's ruling on their motion for new trial. Furthermore, appellees' counsel did not address the issue at oral argument. Accordingly, we find that appellants have abandoned the appeal from the December 2, 2016 judgment, and we shall not address the propriety of the trial court's ruling on appellees' motion for new trial in this appeal. Jenkins v. State Farm Mut. Auto. Ins. Co. , 10th Dist. No. 11AP-1074, 2013-Ohio-1142, 2013 WL 1200246, ¶ 50, citing Thompson v. Thompson , 196 Ohio App.3d 764, 2011-Ohio-6286, 965 N.E.2d 377, ¶ 65 (10th Dist.) (because the appellant's assignments of error do not reference the trial court's denial of prejudgment interest and because the appellant did not raise the issue at oral argument, we will not address the issue in the appeal). See also OCWEN Loan Servicing v. Prater , 3d Dist. No. 9-12-23, 2012-Ohio-4879, 2012 WL 5207549, ¶ 11 (appeal dismissed where sole assignment of error did not pertain to the judgment appealed from).

B. Appellants' Sole Assignment of Error

{¶ 17} In appellants' sole assignment of error, appellants contend that the trial court erred when it granted appellees' motion for JNOV as to appellants' claim of medical negligence. In order to establish medical negligence, a plaintiff must show: (1) the standard of care recognized by the medical specialty community, (2) the failure of the defendant to meet the requisite standard of care, and (3) a direct causal connection between the medically negligent act and the injury sustained. Stanley v. Ohio State Univ. Med. Ctr. , 10th Dist. No. 12AP-999, 2013-Ohio-5140, 2013 WL 6157232, ¶ 19, citing Bruni v. Tatsumi , 46 Ohio St.2d 127, 130, 346 N.E.2d 673 (1976).

{¶ 18} "It is well settled in Ohio that in order to prevail in a medical malpractice claim, a plaintiff must demonstrate through expert testimony that, among other things, the treatment provided did not meet the prevailing standard of care." Ramage v. Cent. Ohio Emergency Serv., Inc. , 64 Ohio St.3d 97, 102, 592 N.E.2d 828 (1992). "Proof of the recognized standards must necessarily be provided through expert testimony." Bruni at 131-32, 346 N.E.2d 673. "That expert testimony must explain what a physician of ordinary skill, care, and diligence in the same medical specialty would do in similar circumstances." Stanley at ¶ 19.

{¶ 19} In Bruni , the Supreme Court of Ohio established the legal standard for medical negligence as follows:

In evaluating the conduct of a physician and surgeon charged with malpractice, the test is whether the physician, in the performance of his service, either did some particular thing or things that physicians and surgeons, in that medical community, of ordinary skill, care and diligence would not have done under the same or similar circumstances, or failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances. He is required to exercise the average degree of skill, care and diligence exercised by members of the same medical specialty community in similar situations.

Id. at 129-30, 346 N.E.2d 673.

{¶ 20} The foregoing standard is generally considered to be objective, rather than subjective, applying equally to all physicians under like or similar conditions or circumstances. Bruni at 134-35, 346 N.E.2d 673 ; Berdyck v. Shinde , 66 Ohio St.3d 573, 579, 613 N.E.2d 1014 (1993) ; Toth v. Oberlin Clinic, Inc. , 9th Dist. No. 01CA007891, 2002-Ohio-2211, 2002 WL 987559, ¶ 46 ;

Riley v. Northeast Family Health Care , 9th Dist. No. 17814, 1997 WL 177675 (Apr. 9, 1997). Failure to provide expert testimony establishing the recognized standards of care in the medical specialty community is fatal to the presentation of a prima facie case of medical negligence. Reeves v. Healy , 192 Ohio App.3d 769, 2011-Ohio-1487, 950 N.E.2d 605, ¶ 38 (10th Dist.), citing Bruni at 130, 346 N.E.2d 673.

{¶ 21} In Estate of Hall v. Akron Gen. Med. Ctr. , 125 Ohio St.3d 300, 2010-Ohio-1041, 927 N.E.2d 1112, the Supreme Court set forth the rationale for the rule requiring expert testimony in medical negligence cases as follows:

[C]ourts recognize that there may be a variety of causes for an injury in a medical malpractice case, and some procedures are so inherently risky that injuries may occur even when physicians are careful. "A physician is not a warrantor of cures. If the maxim, 'Res ipsa loquitur,' were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the 'ills that flesh is heir to.' " Ewing v. Goode (Cir.Ct., S.D.Ohio 1897), 78 F. 442, 443. Thus, a jury in a medical malpractice action would rarely be able to conclude, based on common experience alone, that the injury was one that did not ordinarily occur in the absence of negligence.

Id. at ¶ 22.

{¶ 22} As noted above, the jury found that Dr. Janis departed from the accepted standards of care in his treatment of Timothy by the "malplacement of a total ankle replacement in a 33-year-old patient." (Jury Interrog. No. 2.) In granting appellees' motion for JNOV, the trial court concluded that because appellants failed to present the testimony of a medical expert in order to establish the applicable standard of care, the evidence presented by appellants was insufficient to support the jury verdict in appellants' favor. The trial court further concluded that because appellants failed to present the testimony of a medical expert in order to establish an alleged deviation from the applicable standard of care by Dr. Janis proximately caused harm to appellants, the evidence presented by appellants was insufficient to support the jury verdict in their favor. We agree with the trial court's analysis and conclusions.

{¶ 23} Appellees called Stephen Conti, M.D., as their expert witness in this case. Dr. Conti testified that he is an orthopedic surgeon licensed to practice medicine in Pennsylvania and Ohio and that he has been board certified in orthopedic surgery since 1994. He estimated that he has performed more than 1,000 total ankle replacement surgeries in his career and that he continues to perform such procedures on a weekly basis. According to Dr. Conti, orthopedic surgeons and podiatrists have been performing total ankle replacement surgery for approximately 20 years, and the technology has continued to develop over that time. Dr. Conti first began performing total ankle replacement surgery in the mid-90's, with a prosthetic device that he helped develop. When that device went off the market in 2010, Dr. Conti began using other devices including the Salto Talaris prosthesis used by Dr. Janis in this case and the INBONE prosthesis used by Dr. Berlet.

{¶ 24} Prior to giving testimony in this matter, Dr. Conti reviewed the medical records relating to Timothy's treatment with Dr. Sarihan, Dr. Gittins, Dr. Janis, and Dr. Berlet, as well as the hospital records from the various surgical procedures performed on Timothy's ankle. He also reviewed the deposition testimony of Timothy, Dr. Janis, Dr. Berlet, and physical therapist Mark Main. Dr. Conti testified that in 2005 and 2006, Timothy suffered from ostechondritis diseccans ("OCD lesion") affecting the talus bone, which is located in the lower leg below the tibia. Dr. Conti stated that the ankle is located between the tibia and the talus. Dr. Conti described Timothy's OCD lesion as a small area of dead bone at the top of the talus, about the size of a pencil eraser.

{¶ 25} Dr. Conti testified that curing the lesion was the goal of the surgical procedures performed by Dr. Gittins, as well as the first surgery performed by Dr. Janis. According to Dr. Conti, after the curative surgical procedures had failed, Timothy had the following options: (1) do nothing and live with the pain and stiffness in his ankle, (2) total ankle replacement surgery, and (3) ankle fusion surgery. Dr. Conti testified that it was reasonable for Dr. Janis to discuss the possibility of total ankle replacement with Timothy after the curative surgical procedures had failed.

{¶ 26} Dr. Conti described total ankle replacement surgery using the Salto Talaris prosthesis. He stated that device includes a metal component which is attached to the tibia, a component that is attached to the talus, with a prosthetic ankle joint between the two, consisting of both metal and plastic parts. Dr. Conti testified that the surgeon visually determines where to drill into the tibia to attach the Salto Talaris prosthesis. The surgeon then makes the incision and drills into the tibia with the aid of a block and jig. According to Dr. Conti, the instruments used by surgeons when installing a total ankle replacement are still "crude" when compared to the instruments used in hip or knee replacement procedures, "but this is standard of what we are currently using." (Tr. Vol. 3 at 475.) He also stated that the medical community is "still learning, * * * still kind of in our infancy, and some things go well and some things go poorly." (Tr. Vol. 3 at 476.) Dr. Conti testified "patients that have [a] seemingly well done total ankle, but still hurt * * * on the inside and the outside parts of the ankle." (Tr. Vol. 3 at 476-77.) According to Dr. Conti, the range of acceptable error in regard to the positioning of the Salto Talaris prosthesis as it is attached to the tibia is one to three millimeters. Dr. Conti testified that x-rays taken of Timothy's ankle following the total ankle replacement surgery performed by Dr. Janis do not show a prosthetic ankle joint that is "mechanically blocked because it has been put in too high as compared to the native joint line." (Tr. Vol. 3 at 488.)

{¶ 27} On direct examination, Dr. Conti further opined as follows:

Q. Just to finish up, do you have an opinion whether Dr. Janis in any fashion departed from accepted standards of care in his care and treatment of his patient, Timothy Grieser?
A. So my opinion is he did not deviate from any accepted standards of care. In fact, he provided [Timothy] with exceptional care.
Q. And do you have an opinion, again based on reasonable medical certainty, whether any action or inaction of Dr. Leonard Janis directly and proximately caused harm to his patient, Timothy Grieser?
A. My opinion is he did not cause harm to Mr. Grieser.

(Tr. Vol. 3 at 501.)

{¶ 28} Appellants concede that Ohio law required them to produce expert medical testimony in order to support a jury verdict in their favor. Appellants do not claim that the standard of care in the orthopedic surgical community applicable to the implantation procedure for the Salto Talaris prosthesis is a matter within the common knowledge of laypersons. Appellants argue, however, that the testimony of Dr. Berlet, when construed in their favor, provides sufficient support for the jury's determination that Dr. Janis breached the standard of care. We disagree.

{¶ 29} Dr. Berlet testified that he is licensed to practice medicine in Ohio and that he achieved board certification in orthopedic surgery in 1994. Dr. Berlet indicated that he was testifying in the trial of this matter as Timothy's treating physician, not as a paid expert witness for appellants. Dr. Berlet also acknowledged at trial that he did not review the medical records produced by Dr. Janis or those produced by physical therapist Mark Main prior to his giving testimony in this matter.

{¶ 30} Dr. Berlet's primary criticism of Dr. Janis's treatment of Timothy was that Dr. Janis attached the tibial section of the Salto Talaris prosthesis too high on the tibia, causing an impingement of the prosthetic ankle joint and resulting in stiffness and pain in the ankle. In Dr. Berlet's notes concerning his initial treatment of Timothy's ankle, Dr. Berlet indicated that x-rays taken at his direction showed that the Salto Talaris prosthesis was "malpositioned." (Tr. Vol. 2 at 375.) Dr. Berlet acknowledged, however, that whether the surgeon is using the Salto Talaris prosthesis or the INBONE prosthesis, "the most complicated part of this operation is lining it up and deciding where to do the bone cut." (Tr. Vol. 2 at 359.) He also acknowledged on cross-examination that an operative report indicates that adequate range of motion in the prosthetic ankle joint was confirmed by anatomic fluoroscopy immediately following the installation of the Salto Talaris prosthesis by Dr. Janis. Though Dr. Berlet stated that he "would tend to disagree" with the operative note, he acknowledged that the development of scar tissue post-operatively could affect range of motion and that he "saw this patient some six to eight months later, so that there is a lot of things that can happen in the meantime." (Tr. Vol. 2 at 382-83.) On direct examination, Dr. Berlet never offered testimony in the form of an opinion regarding the applicable standard of care in the medical specialty community, nor did Dr. Berlet testify that, in his opinion, Dr. Janis deviated from that standard of care in his treatment of Timothy.

{¶ 31} Appellants maintain that Dr. Berlet's testimony on redirect examination regarding a treatment note he authored following his first office visit with Timothy provides the expert opinion necessary to sustain the jury verdict. On redirect examination, Dr. Berlet testified as follows:

Q. And finally, in No. 4 of your impression part of the note, you described the persistent pain, and that was a problem that you had to deal with, correct?
A. Yes.
Q. Thank you. And in the plan portion of that note, you wrote: "Mr. Grieser and I had a very good conversation about what it means to put a joint replacement in a 33-year-old." Do you remember writing that?
A. Yes.
Q. "It is certainly not the standard of care, although it can be done. It has to be with a very clear recognition from the client that this will not last their life and ultimately will require some revisions. It seems that this conversation really had not happened with Dr. Janis." Do you remember writing that?
A. So the context is important. The standard I am referring to is the one we discussed earlier. If we are in a room of orthopedic surgeons discussing this case, it would be highly unlikely that would be the option recommended.
Q. And that is your opinion, and not merely to a probability, but based upon all of your skill and training and knowledge and experience to a reasonable certainty, correct?
A. Yes.

(Tr. Vol. 2 at 376-77.)

{¶ 32} Dr. Berlet also referred to Dr. Janis's decision to perform a total ankle replacement on an active 33-year-old patient as, "in an orthopedic context, * * * unconventional." (Tr. Vol. 2 at 347.)

{¶ 33} As previously noted, the parties submitted three interrogatories to the jury, including an interrogatory which asked the jurors to "specifically list the act(s) of negligence which you state Dr. Janis committed." (Jury Interrog. No. 2.) All seven jurors answered the interrogatory as follows: "Deviation from standard of care with malplacement of a total ankle replacement in a 33-year-old patient." (Jury Interrog. No. 2.) "The purpose of jury interrogatories is twofold." Reeves at ¶ 30, citing Hamm v. Smith , 6th Dist. No. E-98-026, 1998 WL 879191 (Dec. 18, 1998). " 'The essential purpose to be served by [jury] interrogatories is to test the correctness of a general verdict by eliciting from the jury its assessment of the determinative issues presented by a given controversy in the context of evidence presented at trial.' " Reeves at ¶ 30, quoting Cincinnati Riverfront Coliseum, Inc. v. McNulty Co. , 28 Ohio St.3d 333, 336-37, 504 N.E.2d 415 (1986), citing Davison v. Flowers , 123 Ohio St. 89, 174 N.E. 137 (1930). "Jury interrogatories also test the jury's factual determinations and express the jury's true intentions." Reeves at ¶ 30, citing Hamm , citing Phillips v. Dayton Power & Light Co. , 111 Ohio App.3d 433, 446, 676 N.E.2d 565 (2d Dist.1996). "The Supreme Court of Ohio stated that 'the answering of [jury] interrogatories is even more important than the general verdict.' " Reeves at ¶ 30, quoting Aetna Cas. & Surety Co. v. Niemiec , 172 Ohio St. 53, 55, 173 N.E.2d 118 (1961).

{¶ 34} In our view, the opinion testimony relied on by appellants does not support the jury finding of a "[d]eviation from standard of care with malplacement of a total ankle replacement in a 33-year-old patient." (Jury Interrog. No. 2.) Even when viewed in a light most favorable to appellants, Dr. Berlet's testimony cannot reasonably be construed as an opinion regarding the standard of care in the field of orthopedic surgery with regard to the placement of the Salto Talaris prosthesis during total ankle replacement surgery. Though Dr. Berlet is clearly qualified to express an opinion in this regard, absent his expression of such an opinion, the jury was left to speculate whether a podiatrist of ordinary skill, care, and diligence in the field of orthopedic ankle replacement surgery would not have positioned the Salto Talaris prosthesis as Dr. Janis did. Dr. Berlet's subjective opinion that the Salto Talaris prosthesis was malpositioned on the tibia does not equate to an opinion regarding the applicable standard of care in the medical specialty community. Similarly, we disagree with appellants' claim that Dr. Berlet's testimony supports a finding that Dr. Janis breached the standard of care by performing total ankle replacement surgery on a 33-year-old patient, Dr. Berlet's testimony was not the basis on which the jury found Dr. Janis had breached this standard of care. Moreover, there is no dispute that following the total ankle replacement surgery performed by Dr. Janis, Timothy elected to undergo a second total ankle replacement with Dr. Berlet, rather than opting for ankle fusion surgery. Accordingly, we find that the above-cited testimony from Dr. Berlet, when construed in appellants' favor, does not satisfy appellants' burden of producing an expert opinion regarding the standard of care and does not successfully rebut the arguments in favor of granting judgment notwithstanding the verdict. This being the case, the record does not contain substantial, competent evidence in support of the jury verdict.

{¶ 35} Even if we were to conclude that Dr. Berlet's trial testimony qualifies as an expert opinion regarding an applicable standard of care, when appellees' trial counsel asked Dr. Berlet whether he was offering an expert medical opinion regarding standard of care, the following exchange took place:

Q. All right. So you are not here to testify before this jury as to accepted standards of care in the treatment of this patient; is that right?
A. I am not.
Q. All right. You make no opinion that Dr. Janis violated any standard of care in his care and treatment of this patient?
A. I do not.
Q. And that is your opinion to a reasonable medical certainty?
A. It is.
Q. Anything to the contrary notwithstanding?
A. I am not sure what you mean by that last statement.
Q. There is nothing else you have said should be interpreted as standard of care testimony?
A. I am not providing standard of care testimony.

(Tr. Vol. 2 at 378.)

{¶ 36} "Once an expert properly states his professional opinion to a properly formed question as to 'probability,' he * * * has established a prima facie case as a matter of law." Heath v. Teich , 10th Dist. No. 03AP-1100, 2004-Ohio-3389, 2004 WL 1446042, ¶ 14, quoting Galletti v. Burns Internatl. , 74 Ohio App.3d 680, 684, 600 N.E.2d 294 (11th Dist.1991). Consequently, in reviewing a trial court's decision to grant a motion for a directed verdict, appellate courts, including this court, have concluded that the erosion of an expert witness's testimony by effective cross-examination does not warrant the granting of such a motion unless the expert either contradicts or recants his prior testimony. Heath at ¶ 14. See also Lanzone v. Zart , 11th Dist. No. 2007-L-073, 2008-Ohio-1496, 2008 WL 836410, ¶ 58. " 'Erosion of [an expert] opinion due to effective cross-examination does not negate that opinion; rather it only goes to weight and credibility.' " Heath at ¶ 14, quoting Galletti at 684, 600 N.E.2d 294. " 'The exception would be when the expert actually recants the opinion on cross.' " Lanzone at ¶ 58, quoting Celmer v. Rodgers , 11th Dist. No. 2004-T-0074, 2005-Ohio-7054, 2005 WL 3610478, ¶ 35. "[T]he party moving for a directed verdict must show that the testimony was resolved in its favor by direct contradiction, negation, or recantation of the testimony given by the witness on direct examination." Heath at ¶ 14, citing Nichols v. Hanzel , 110 Ohio App.3d 591, 602, 674 N.E.2d 1237 (4th Dist.1996). To "recant" is to "[t]o withdraw or renounce (prior statements or testimony) formally or publicly." Black's Law Dictionary 1459 (10th Ed.2014). To "negate" is "1. To deny. 2. To nullify; to render ineffective." Black's at 1195.

{¶ 37} In this instance, rather than simply contradicting or retreating from a prior opinion he had given regarding the standard of care, Dr. Berlet insisted that he had not offered any such opinion during his direct examination and that it was not his intention to do so. The conclusion to be drawn from Dr. Berlet's testimony on cross-examination is that Dr. Berlet negated and/or recanted any prior opinion he may have rendered regarding the recognized standard of care applicable to the care and treatment of Timothy. Thus, to the extent that Dr. Berlet's testimony on direct examination could be construed as an expression of his expert opinion regarding the applicable standard of care and Dr. Janis's breach thereof, Dr. Berlet expressly recanted any such opinion on cross-examination. In our view, Dr. Berlet's unequivocal testimony on cross-examination effectively negated any standard of care opinion he may have provided during his direct examination.

{¶ 38} Appellants counter that Dr. Berlet "affirmed on re-direct" opinions he had given during his direct examination. (Appellants' Reply Brief at 10.) Appellants cite the following testimony as evidence that Dr. Berlet did render expert opinion testimony regarding the standard of care:

Q. [Y]our testimony here today is clearly as an expert because you are not a lay person, it is an expert that possesses higher knowledge, skill, training and expertise, and you know that the jury will accept your testimony as an expert?
A. Yes.
Q. Okay. And it is in that spirit that you are here today to talk about what you know and about your observations and opinions that have been recorded in the records?
A. Yes.
[Appellant's Counsel]: Thank you.

(Tr. Vol. 2 at 402.)

{¶ 39} In our view, the testimony on which appellants rely is merely Dr. Berlet's acknowledgment that he possesses the knowledge, skill, training, and experience in orthopedic surgery necessary to qualify him as an expert. Appellees' argument, however, is not that Dr. Berlet lacks the necessary qualifications to offer an expert opinion regarding the applicable standard of care but, rather, that Dr. Berlet did not offer any such opinion in this case. Nothing in his redirect examination rehabilitates him after he stated on cross-examination, "I am not providing standard of care testimony." (Tr. Vol. 2 at 378.) We agree with appellees. Contrary to appellants' assertion, it is not reasonable to construe Dr. Berlet's testimony on redirect as an affirmation of a previously expressed opinion regarding the applicable standard of care, even if he had offered such an opinion.

{¶ 40} The trial court found, alternatively, that appellants did not produce expert testimony to support the jury determination that a failure by Dr. Janis to meet the applicable standard of care in his treatment of Timothy proximately caused appellants' harm. When appellees' trial counsel asked Dr. Berlet whether he had an opinion regarding the cause of Timothy's loss of flexibility in his ankle joint and the ankle pain experienced by Timothy following his treatment with Dr. Janis, Dr. Berlet gave the following testimony:

Q. * * * Just a couple of questions. At deposition you testified that you make no opinion as to the cause of this patient's ankle pain, either medial or lateral, either side of the foot?
A. Maybe you can put a time context to that statement.
Q. I can show you the testimony, in fact.
A. Sure.
Q. I asked you if you would make an opinion about the reason for his lateral pain, meaning pain on the outside of his foot, and the answer was, "No."
"Do you make any opinion about the reason for any of this pain, whether lateral or medial?" And the answer was, "No."
"He went into the situation with pain?" And the answer: "Yes."
"His pain complaints go back to 2005 or so, don't they?"
"Yes. The relevant part is he is able to continue to function."
Do you agree with that testimony today, Doctor?
A. I do. I also bring up my earlier testimony is that I concluded that his pain was mechanical pain.
Q. Have you ever seen the records of Dr. Janis or the physical therapist up to whatever bits you have been shown today, correct?
A. No.

(Tr. Vol. 2 at 379-80.)

{¶ 41} "In medical malpractice cases, the general rule is that the plaintiff must prove causation through medical expert testimony in terms of probability to establish that the injury was, more likely than not, caused by the defendant's negligence." Stamper v. Univ. of Cincinnati Hosp. , 10th Dist. No. 99AP-1157, 2000 WL 1231092 (Aug. 31, 2000), quoting Hitch v. Dept. of Mental Health , 114 Ohio App.3d 229, 240, 683 N.E.2d 38 (10th Dist.1996). " 'Probably' is defined as 'more likely than not' or greater than fifty percent chance." Id. , quoting Miller v. Paulson , 97 Ohio App.3d 217, 222, 646 N.E.2d 521 (10th Dist.1994).

{¶ 42} The only expert medical testimony in the record as to proximate cause of the pain and stiffness experienced by Timothy following the total ankle replacement surgery performed by Dr. Janis was that of Dr. Conti. Given Dr. Berlet's acknowledgment that Timothy had experienced stiffness and pain in his ankle joint both prior to and following his treatment with Dr. Janis, and Dr. Berlet's admission that patients may still experience ankle pain even though an ankle prosthesis is properly positioned, it was imperative for appellants to present the testimony of a medical expert to support appellants' claim that Timothy's complaints of ankle pain and stiffness following the surgical procedure performed by Dr. Janis were caused, in whole or in part, by Dr. Janis's failure to meet the applicable standard of care. See Stamper ; Hitch . Though Dr. Berlet testified that the pain experienced by Timothy following the total ankle replacement surgery with Dr. Janis was "mechanical pain," he did not testify to a reasonable degree of medical probability that the pain and stiffness of Timothy's ankle were caused by the negligence of Dr. Janis. (Tr. Vol. 2 at 379.)

{¶ 43} For the foregoing reasons, we find that the jury verdict in appellants' favor was not supported by the evidence. Accordingly, we hold that the trial court did not err when it granted appellees' motion for JNOV and entered judgment in favor of appellees. Appellants' sole assignment of error is overruled.

V. CONCLUSION

{¶ 44} For the foregoing reasons, appellants' sole assignment of error is overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.

Judgment affirmed.

BROWN and BRUNNER, JJ., concur.

      Dr. Janis testified as follows:
      Q. All right. Do you believe that you departed from accepted standards of care in your treatment of [Timothy]?
      A. Not at all.
      (Tr. Vol. 4 at 806.)