source: Caselaw Access Project

author: TIMOTHY P. CANNON, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Marque Daquan BROWN, Defendant-Appellant.
    NO. 2016-A-0021
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided December 26, 2017
    Nicholas A. Iarocci, Ashtabula County Prosecutor, Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).
    Thomas Rein, 820 West Superior Avenue, 820 Building, Suite 940, Cleveland, OH 44114 (For Defendant-Appellant).
   TIMOTHY P. CANNON, J.

{¶ 1} Appellant, Marque Daquan Brown, appeals from the entry of sentence issued by the Ashtabula County Court of Common Pleas on February 26, 2016, sentencing appellant to 22 years in prison on two counts of involuntary manslaughter. The trial court's judgment is affirmed in part and reversed in part for the reasons stated below.

Statement of Facts and Procedural History

{¶ 2} This case stems from an altercation that occurred between appellant and his girlfriend, Taisha Ramirez, on or about May 25, 2014. On that date, appellant and Taisha were 20 and 17 years old, respectively. Taisha was approximately seven or eight months pregnant with appellant's son. They resided together at the home of Taisha's mother, Marilyn Cedeno; Taisha's brothers, Jose Luis Ramirez, Andre Luiz Ramirez, Ismal Ruiz, and Kenny Gonzalez; and Taisha's 13-year old sister, J.R.

{¶ 3} The following is a summary of the testimony presented at trial.

{¶ 4} Taisha and J.R. went to bed in the same room around 10:00 p.m.; appellant was not home at the time. Around 3:00 a.m., the sisters were awoken by appellant knocking on the door; Taisha let him in the house. Appellant and Taisha went upstairs to the room they shared on the third floor; J.R. followed and remained on the stairs where she could see them. The couple then went to the mother's bedroom on the second floor; J.R. followed and stood in the doorway while the couple argued for about 20 minutes. The couple moved to the bathroom and closed the door for about 10 minutes.

{¶ 5} J.R. opened the bathroom door when she heard Taisha screaming and crying. J.R. heard Taisha tell appellant not to punch her and observed Taisha on the ground, bleeding from her nose. J.R. saw appellant punch Taisha in the face with a closed fist three or four times. J.R. unsuccessfully attempted to get appellant away from Taisha. J.R. observed blood on the floor of the bathroom, and Taisha's nose appeared to be broken and her lips were cut.

{¶ 6} Ismal and Kenny heard their mother and J.R. screaming, and they entered the bathroom. Kenny and Ismal observed Taisha sitting on the floor, bleeding from her nose, and crying; her nose and mouth were swollen. Kenny observed blood on the floor, in the sink, and on the toilet. Ismal observed blood on the carpet, walls, floor, and toilet, in addition to the towels Taisha was holding to her nose to stop the bleeding. Ismal testified Taisha's nose and lips were swollen. Photographs of the blood in the bathroom and on the towels, and of the injuries to Taisha's face, were submitted as exhibits to the jury.

{¶ 7} Kenny took appellant to the shower and punched him in the face; Ismal also hit appellant with his fist. The brothers took appellant downstairs; appellant was yelling that he was sorry and asking Taisha to forgive him. Ismal called the police. A recording of the call was played for the jury. J.R. testified she had to help Taisha downstairs because she was unable to walk on her own. By the time they made it downstairs, the police had arrived.

{¶ 8} Officer Daniel Gillespie, of the Ashtabula City Police Department, reported to the scene with another patrolman, at which time he heard yelling and screaming from inside the residence. Upon entering the residence, he observed multiple occupants focusing their anger at appellant, who was backing up towards the door with his hands up. Officer Gillespie placed appellant in his patrol car and went back inside to investigate. He then observed Taisha crying and bleeding heavily from her nose, which was disfigured and swollen; the towel she was holding to her face was soaked with blood. He testified that Taisha was initially reluctant to remove the towel from her face and talk to him, but that she eventually told him appellant had hit her while they were arguing.

{¶ 9} Officer Gillespie testified that, on the way to the station, appellant indicated he wanted to tell the officer what happened; therefore, Officer Gillespie advised appellant of his Miranda rights. Officer Gillespie testified that appellant reported arguing with Taisha, which involved a lot of yelling and screaming, and then he left. Appellant would not answer Officer Gillespie's question of how Taisha became injured. Appellant was booked on a charge of domestic violence.

{¶ 10} J.R. stayed at Taisha's side until an ambulance arrived. Kenny rode in the ambulance with Taisha. J.R. and Kenny remained with Taisha at the hospital. Kenny and J.R. testified they were only there for about half an hour, no tests were performed, and the only treatment Taisha received was Tylenol. Kenny indicated Taisha did not appear to be "healthy or feeling fine" when she was discharged.

{¶ 11} Dr. Imrann Haniff was the emergency room physician on duty when Taisha arrived at Ashtabula County Medical Center ("ACMC") around 6:30 a.m. Dr. Haniff testified that Taisha reported she had been assaulted and hit in the face. He stated Taisha told him she was slapped in the face one time; he did not observe anything that contradicted Taisha's report of what happened. Dr. Haniff observed that Taisha's lip was swollen, she had blood coming from both nostrils, and she was pregnant. The nurse was able to detect a fetal heart tone at that time, which indicated the fetus was alive. Dr. Haniff did not find any fractures during his examination of Taisha, and he gave her an ice pack. He testified Taisha was in good condition when she was discharged around 7:30 a.m.

{¶ 12} When Taisha returned home from the hospital, Ismal observed that she was dizzy and weak and could not make it up the stairs to her third-floor bedroom. He helped her out of the car and up to the second floor with the assistance of another family member. J.R. stayed with Taisha in their mother's bedroom. She testified that Taisha started to bleed again from her nose, but she did not notice any injuries on Taisha's head. At approximately 9:15 a.m., Ismal called for another ambulance because Taisha was bleeding and foaming from her nose, she could not talk or move, her nails were turning blue, and she was unresponsive. A recording of the call was played for the jury.

{¶ 13} Dr. Haniff again treated Taisha in the emergency room, who arrived this second time in cardiac arrest. The staff performed CPR, and Taisha was intubated; it was difficult to obtain a fetal heart tone. They were unable to revive Taisha.

{¶ 14} Taisha and her unborn son both died that morning in the emergency room.

{¶ 15} Dr. Joseph Felo, Deputy Medical Examiner and Forensic Pathologist for Cuyahoga County, performed an autopsy on Taisha. He noted her pregnancy was in its third trimester and observed cuts, scrapes, and bruises caused by blunt trauma to her upper and lower lips. There were no fractures to her skull or her nose. He observed diffuse cerebral edema, i.e., swelling of the brain, and a subdural hematoma, i.e., bleeding on the surface of the brain, caused by blunt trauma to her head. He testified that one slap would not have caused the injury because there were three separate impact sights.

{¶ 16} Dr. Felo did not perform a separate autopsy on the child because he was not born alive. He did not find any birth defects during his external examination, however, and opined that the unborn child would have lived had Taisha not died.

{¶ 17} Dr. Pamela Lancaster, the Ashtabula County Coroner, investigated Taisha's death at ACMC, reviewed the autopsy report, and issued a death certificate. She testified that the cause of Taisha's death, within a reasonable degree of medical certainty, was the subdural hematoma due to blunt impacts to the head. She ruled the manner of Taisha's death as a homicide. Because the child was not born alive, there was not a separate coroner's verdict or death certificate issued.

{¶ 18} Detective William Felt, of the Ashtabula City Police Department, interviewed appellant on May 27, 2014, with Lieutenant Doug Hollis. Detective Felt testified as to his training in detecting deception, analyzing and determining whether a person is being truthful through physical and nonphysical cues, and assessing the demeanor and behavior of an interviewee. He testified that appellant did not appear bothered by his arrest and that he seemed to lack emotion. The interview was played for the jury, during which appellant appeared to be crying. Detective Felt testified that there was a lack of congruence in appellant's behavior because he did not produce tears; in other words, appellant's physical reaction did not match his verbal reaction. During the interview, appellant admitted to arguing with Taisha until he was pulled away by Ismal and Kenny. Near the end of the interview, appellant admitted he punched Taisha.

{¶ 19} On June 26, 2014, appellant was indicted on two counts of murder, unclassified felonies, in violation of R.C. 2903.02(B) ; two counts of involuntary manslaughter, first-degree felonies, in violation of R.C. 2903.04(A) ; and two counts of felonious assault, second-degree felonies, in violation of R.C. 2903.11(A)(1). Appellant pled not guilty.

{¶ 20} Appellee, the state of Ohio, filed a motion in limine to preclude evidence or testimony of alleged medical negligence as an independent intervening cause, to which appellant filed a response in opposition. A hearing was held on the motion. The trial court granted the state's motion, finding the reports of appellant's expert did not establish that Taisha's medical care was an independent intervening cause of death as defined by law.

{¶ 21} A jury trial commenced February 2, 2016. One count of felonious assault, as against the unborn child, was dismissed at the state's request following trial. The defense renewed its request that the jury be instructed as to intervening cause, which the trial court denied. The jury found appellant guilty of two counts of involuntary manslaughter and one count of felonious assault; it found him not guilty of both counts of murder.

{¶ 22} The trial court merged the felonious assault count into both involuntary manslaughter counts for purposes of sentencing. On February 26, 2016, the trial court sentenced appellant to 11 years in prison on each count of involuntary manslaughter, to be served consecutively, for a total term of 22 years in prison.

{¶ 23} Appellant now raises eight assignments of error for our review:

[1.] The State failed to present sufficient evidence to sustain a conviction against Appellant.
[2.] Appellant's convictions are against the manifest weight of the evidence.
[3.] Appellant was denied a fair trial by the witness' improper comments while testifying.
[4.] The trial court erred by granting the state's motion in limine and by preventing Appellant to present a complete defense which would have included the alleged medical negligence.
[5.] The trial court erred and violated Appellant's right to a fair trial by permitting the State of Ohio to introduce victim impact evidence.
[6.] Appellant was deprived of his fundamental right to testify in his own defense.
[7.] The trial court erred by ordering appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.
[8.] The trial court erred by ordering convictions and a consecutive sentence for separate counts because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.

Motion in Limine

{¶ 24} We begin our analysis with appellant's fourth assignment of error. Appellant initially argues the trial court erred when it precluded his expert, Dr. John R. Becker, Jr., M.D., from testifying at trial regarding alleged medical negligence as an independent intervening cause of death.

{¶ 25} The state filed a motion in limine seeking to preclude evidence or testimony of alleged medical negligence as an independent intervening cause on the grounds that one who inflicts injury upon another is criminally responsible for that person's death, regardless of whether different or more skillful medical treatment may have saved her life.

{¶ 26} Appellant filed a response in opposition and a motion to present the testimony of Dr. Becker in relation to his expert opinion that "timely intervention on the part of [ACMC] would have saved the life of Taisha Ramirez and her fetus." Two reports from Dr. Becker were attached and incorporated into the motion. Appellant asserted that Dr. Becker's testimony supported the defense of independent intervening cause because the lack of proper diagnosis and treatment broke the chain of causation and relieved him of liability for the deaths.

{¶ 27} " 'It is a general rule that the expert witness is not required to be the best witness on the subject. * * * The test is whether a particular witness offered as an expert will aid the trier of fact in the search for the truth.' " State v. Tomlin , 63 Ohio St.3d 724, 728, 590 N.E.2d 1253 (1992), quoting Alexander v. Mt. Carmel Med. Ctr. , 56 Ohio St.2d 155, 159, 383 N.E.2d 564 (1978). "A trial court's ruling as to the admission or exclusion of expert testimony is within its broad discretion and will not be disturbed absent an abuse of discretion." State v. Koss , 10th Dist. Franklin No. 13AP-970, 2014-Ohio-5042, 2014 WL 5866896, ¶ 16, citing Tomlin , supra , at 728, 590 N.E.2d 1253.

{¶ 28} A hearing was held on the motions, at which the trial court declared the expert reports did not establish that Taisha's medical care was an independent intervening cause of death because the expert did not conclude that medical personnel were grossly negligent. The trial court denied appellant's motion to present the expert opinion set forth in Dr. Becker's report.

{¶ 29} Although we do not agree with the basis of the trial court's decision, i.e., that Dr. Becker was required to set forth the ultimate legal conclusion that gross negligence had occurred, the expert report was not sufficient to support the defense theory that there was an independent intervening cause of death in this case.

{¶ 30} "It is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts." State v. Johnson , 56 Ohio St.2d 35, 39, 381 N.E.2d 637 (1978) (citations omitted). Accordingly, "[i]t is the general rule that one who inflicts injury upon another is criminally responsible for that person's death, regardless of whether different or more skillful medical treatment may have saved his life." Id. at 40, 381 N.E.2d 637 (citations omitted). "This rule has been qualified where there has been a gross or willful maltreatment of the patient by the medical personnel, * * * which is shown to have been an independent intervening cause of the patient's death." Id. (citations omitted). "While simple negligence is insufficient to break a causal connection, 'gross negligence or willful maltreatment will relieve the defendant from liability.' " State v. Dukes , 11th Dist. Portage No. 2010-P-0027, 2011-Ohio-6849, 2011 WL 6938589, ¶ 33, quoting State v. Hanna , 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 45.

{¶ 31} In Ohio, "gross negligence is defined in terms of wanton or reckless conduct." Mohat v. Horvath , 11th Dist. Lake No. 2013-L-009, 2013-Ohio-4290, 2013 WL 5450296, ¶ 23 (citations omitted). "Reckless conduct is characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct." Anderson v. Massillon , 134 Ohio St.3d 380, 2012-Ohio-5711, 983 N.E.2d 266, paragraph four of the syllabus, adopting 2 Restatement of the Law 2d, Torts, Section 500 (1965). "Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is owed in circumstances in which there is great probability that harm will result." Id. at paragraph three of the syllabus, following Hawkins v. Ivy , 50 Ohio St.2d 114, 363 N.E.2d 367 (1977).

{¶ 32} Dr. Becker did not proffer any testimony in his expert reports that supports a theory of grossly negligent medical treatment. He opined, in relevant part, as follows:

It is my professional opinion that timely intervention on the part of [ACMC] would have saved the life of Taisha Ramirez and her fetus. * * * It is my professional opinion that a Head CT should have been performed and that patient should have been observed for a much longer period of time in the Emergency Department. Subsequently we learn that patient developed a right subdural hematoma which if treated, would most likely have given patient Ramirez and her fetus, a greater than 50% percent chance of surviving. Therefore, staff at [ACMC] failure to diagnose or appreciate the severity of Taisha Ramirez's injuries and premature discharge from the Emergency Department did contribute to her death. * * *
In conclusion, it is my professional opinion, that [appellant's] assault on Taisha Ramirez at approximately 3:30-3:45am ultimately lead [sic] to her and her fetus' death at approximately 10:34am.
However, staff at [ACMC] had an opportunity to diagnosis [sic] and potentially arrange treatment that could have led to saving the life of Taisha Ramirez and her fetus.
* * *
If a competent evaluation had taken place patient would have been admitted to an intensive care unit where her and her fetus would have had a reasonable chance of survival.

{¶ 33} Under the circumstances as presented in Dr. Becker's reports, any failure of medical personnel would not have amounted to gross negligence sufficient to break the causal connection between the injuries inflicted by appellant and the deaths of Taisha and her unborn child. This expert testimony amounted to an opinion that simple negligence had occurred. The fact that better medical care may have saved the life of Taisha and her unborn child is not dispositive. It does not constitute evidence that would have allowed the jury to make a factual determination that the causal connection had been broken between appellant's actions and the deaths. As a result, the proposed testimony as set forth in the expert reports would not have aided the jury in its search for the truth as to the cause of death.

{¶ 34} We are unable to conclude that the trial court abused its discretion by excluding the expert reports and testimony of Dr. Becker.

{¶ 35} Appellant next argues the trial court erred by granting the state's motion in limine to exclude any evidence of alleged medical negligence as an independent intervening cause.

{¶ 36} " 'An order granting or denying a motion in limine is a tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated. An appellate court need not review the propriety of such an order unless the claimed error is preserved by a timely objection when the issue is actually reached during the trial.' " State v. Grubb , 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986), quoting State v. Leslie , 14 Ohio App.3d 343, 344, 471 N.E.2d 503 (2d Dist.1984).

{¶ 37} A decision on a motion in limine is reviewed for an abuse of discretion. See, e.g. , State v. Spahr , 47 Ohio App.2d 221, 224, 353 N.E.2d 624 (2d Dist.1976) ("Such a request lies in the inherent power and discretion of the trial judge to control the proceedings.").

{¶ 38} In its judgment entry, the trial court precluded any evidence, testimony, or argument at trial of alleged medical negligence as an independent intervening cause. The state later renewed its motion in limine due to a concern raised by a civil suit notice filed against Dr. Haniff. The trial court reiterated that Dr. Becker's expert reports were precluded because his conclusion as to cause of death, i.e. appellant's assault, was consistent with that of the state's medical experts. The trial court further stated, however, that although evidence of simple negligence would not be permitted under its ruling on the motion in limine, any evidence of gross negligence or willful maltreatment should be admissible.

{¶ 39} We do not find error with the trial court's decision to grant the state's motion in limine. Appellant raises no argument with regard to a proffer of evidence, if any, made during trial. This argument is not well taken.

{¶ 40} Appellant further argues the trial court erred when it denied his request for a jury instruction on independent intervening causes of death. The relevant instruction, as contained in 2 Ohio Jury Instructions, Criminal, Section 417.25, is as follows: "If the defendant inflicted an injury not likely to produce death, and if the sole and only cause of death was (natural cause) (fatal injury inflicted by another person), the defendant who inflicted the original injury is not responsible for the death."

{¶ 41} Neither the evidence presented nor the evidence proposed was sufficient to warrant this instruction. There is no support for the proposition that any failure on the part of medical personnel was the "sole and only cause of death." The trial court did not err by failing to give the requested instruction.

{¶ 42} Appellant's fourth assignment of error is not well taken.

Evidence at Trial

{¶ 43} In his fifth assignment of error, appellant argues the trial court erred by failing to exclude certain victim-impact evidence regarding Taisha's schooling, pregnancy, and personality, which he alleges was highly prejudicial and inflamed the passions of the jury. In support of this argument, he cites the general rule from State v. White , 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968) :

'Except perhaps where the evidence of the homicide is entirely circumstantial, it is not permissible for the state in the first instance, and before the character of deceased has been assailed, to offer primary evidence or evidence in chief of deceased's good character or reputation as a quiet, peaceable, and law-abiding man.' 40 C.J.S. Homicide s 222, p. 1138.
* * *
Such evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused and the penalty to be imposed. The principal reason for the prejudicial effect is that it serves to inflame the passion of the jury with evidence collateral to the principal issue at bar.

{¶ 44} Defense counsel at trial did not object to some of the testimony of which appellate counsel now complains, and that portion of his claim is forfeited for appellate review. See State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21, citing State v. Quarterman , 140 Ohio St.3d 464, 2014 -Ohio- 4034, 2014-Ohio-4034, ¶ 15 (an appellate court will not consider a claim of error that could have been called to the trial court's attention, but was not, at a time when it could have been avoided or corrected by the trial court).

{¶ 45} " Crim.R. 52(B) affords appellate courts discretion to correct '[p]lain errors or defects affecting substantial rights' notwithstanding the accused's failure to meet his obligation to bring those errors to the attention of the trial court." Id. at ¶ 22. The accused bears the burden to show error (i.e., a deviation from a legal rule that constitutes an obvious defect in the trial proceedings) and to demonstrate a reasonable probability that the error resulted in prejudice (i.e., affected the outcome of the trial). Id. , citing State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Even when the accused meets this burden, appellate courts are not required to correct the error: we are to " 'notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." ' " Id. at ¶ 23 (emphasis sic), quoting Barnes , supra , at 27, 759 N.E.2d 1240, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 46} The admission of the particular testimony to which defense counsel did object, by raising the issue of relevancy, is reviewed for an abuse of discretion. In this instance, a " 'trial court has broad discretion in the admission and exclusion of evidence[.]' " State v. Bickerstaff , 11th Dist. Ashtabula No. 2014-A-0054, 2015-Ohio-4014, 2015 WL 5728518, ¶ 31, quoting State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). "When it is faced with weighing the probative value of evidence against the prejudicial impact, the trial court's decision on whether to admit or exclude such evidence will be upheld absent an abuse of discretion." Id. , citing Shull v. Itani , 11th Dist. Lake No. 2002-L-163, 2004-Ohio-1155, 2004 WL 456299, ¶ 39.

{¶ 47} We do not find that the testimony regarding Taisha's schooling, pregnancy, and personality violates the standard set forth in White . Additionally, the trial court instructed the prosecutor that the testimony could only relate to the witness's observations, not speculation. The trial court did not commit plain error, nor did it abuse its discretion, in allowing this testimony to be admitted.

{¶ 48} Appellant's fifth assignment of error is without merit.

{¶ 49} In his third assignment of error, appellant argues he was denied a fair trial by Detective William Felt's improper opinion testimony regarding appellant's truthfulness during his interview.

{¶ 50} "Opinion testimony from a police officer relating to an accused's veracity is not admissible. A jury tends to trust a police officer's perceptions, similar to that of an expert witness. As a result, such testimony infringes upon the fact-finding function of the jury and affects the fundamental fairness of the trial."

State v. Brown , 11th Dist. Lake, 2016-Ohio-1358, 62 N.E.3d 943, ¶ 33 (internal citations omitted). "If overwhelming evidence exists to support the defendant's conviction, however, then the error shall be deemed harmless." State v. Withrow , 11th Dist. Ashtabula No. 2011-A-0067, 2012-Ohio-4887, 2012 WL 5195812, ¶ 48, citing Crim R. 52(A).

{¶ 51} We do not agree with appellant that Detective Felt's testimony amounted to an opinion as to appellant's veracity in this case. Rather, he was testifying as to his observations of appellant's behavior during the interview and appellant's reaction to receiving the news that Taisha and their son had died.

{¶ 52} We further hold that, assuming any error did exist in allowing Detective Felt's testimony at trial, it was harmless. "Under Evid.R. 103(A) and Crim.R. 52(A), error is harmless unless substantial rights of the defendant are affected." State v. Hutson , 11th Dist. Portage No. 2007-P-0026, 2008-Ohio-2315, 2008 WL 2042834, ¶ 19 (citation omitted). "The test is whether 'there is substantial evidence to support the guilty verdict even after the tainted evidence is cast aside.' " Id. at ¶ 20, quoting State v. Cowans , 10 Ohio St.2d 96, 104, 227 N.E.2d 201 (1967).

{¶ 53} Even without Detective Felt's testimony, there is substantial evidence to support the guilty verdicts, including appellant's admission near the end of the recorded interview that he had punched Taisha. The trial court also instructed the jury, during the detective's testimony, that "[w]itnesses testify, but the ultimate issues of fact are for the Jury to decide."

{¶ 54} Appellant's third assignment of error is without merit.

{¶ 55} As his sixth assignment of error, appellant argues the trial court deprived him of his fundamental right to testify in his own defense because it failed to inquire whether appellant had been informed of this right.

{¶ 56} "Generally, the defendant's right to testify is regarded both as a fundamental and a personal right that is waivable only by an accused." State v. Bey , 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999) (citations omitted). Nothing in the record suggests appellant was not aware of his right to testify in his own defense or that defense counsel failed to advise him of this right. Further, the trial court was "not required to conduct an inquiry with the defendant concerning the decision whether to testify in his defense." Id. (emphasis deleted). Such an inquiry has been deemed unnecessary, capable of causing confusion and delay, and may also be harmful by interfering with the attorney-client relationship. Id. (citations omitted).

{¶ 57} Appellant's sixth assignment of error is without merit.

Convictions

{¶ 58} As his first assignment of error, appellant argues the state failed to present sufficient evidence to warrant a jury instruction on appellant's involuntary manslaughter conviction as it pertains to the unborn child.

{¶ 59} When reviewing whether sufficient evidence was presented to sustain a conviction, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, a claim of insufficient evidence invokes a question of due process, the resolution of which does not allow for a weighing of the evidence.

State v. Habo , 11th Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, 2013 WL 2308483, ¶ 14 (citation omitted).

{¶ 60} The state was required to prove that appellant violated R.C. 2903.04(A), which states: "No person shall cause the death of another or the unlawful termination of another's pregnancy as a proximate result of the offender's committing or attempting to commit a felony."

{¶ 61} Appellant asserts the jury was only instructed as to "another," not as to "the unlawful termination of another's pregnancy." He submits, therefore, that because the child was not born alive and there was not a separate autopsy report or coroner's verdict, the unborn child is not "another" and his conviction cannot stand as a matter of law.

{¶ 62} The jury was instructed, in relevant part, as follows:

Count Four: Involuntary Manslaughter. Under Count Four of the Indictment, the defendant is charged with Involuntary Manslaughter, in violation of Ohio Revised Code Section 2903.04(A), a felony of the first degree.
Before you can find the defendant guilty of Involuntary Manslaughter, you must find beyond a reasonable doubt that on or about May 25th, 2014, in Ashtabula County, Ohio, the defendant knowingly caused the death of the unborn child of Taisha Marie Ramirez-Cedeno, as a proximate result of committing or attempting to commit Felonious Assault.
'Another's unborn' means a member of the human species, who is or was carried in the womb of another, during a period that begins with fertilization and continues unless and until live birth occurs. Person includes an unborn human who is viable . Viable means the stage of development of a human fetus in which there is a realistic possibility of maintaining and nourishing of a life outside the womb with or without temporary, artificial life-sustaining support.

{¶ 63} Appellant's argument is without merit. The jury instructions correctly charge appellant with the death of the unborn child, not simply of "another," as appellant submits. The instruction was also supported by sufficient evidence: Taisha's autopsy revealed the cause of her death was the subdural hematoma she suffered at appellant's hands and that the unborn child would have been born alive had Taisha lived.

{¶ 64} Appellant's first assignment of error is without merit.

{¶ 65} As his second assignment of error, appellant argues both of his involuntary manslaughter convictions are against the manifest weight of the evidence.

{¶ 66} To determine whether a verdict is against the manifest weight of the evidence, a reviewing court must consider the weight of the evidence, including the credibility of the witnesses and all reasonable inferences, to determine whether the trier of fact " 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A judgment of a trial court should be reversed as being against the manifest weight of the evidence " 'only in the exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting Martin , supra , at 175, 485 N.E.2d 717.

{¶ 67} Nothing in the record of appellant's trial indicates the jury lost its way in weighing the testimony and other evidence, which has been extensively outlined above and need not be repeated here. The jurors had the opportunity to observe the eye witnesses and to judge their credibility. The jurors also watched the recorded video of appellant's interview with Detective Felt and thus were able to perceive appellant's credibility and veracity. We find the jury's conclusion that appellant is guilty, beyond a reasonable doubt, of the involuntary manslaughter of Taisha and the couple's unborn child is not against the manifest weight of the evidence.

{¶ 68} Appellant's second assignment of error is without merit.

Sentencing

{¶ 69} As his eighth assignment of error, appellant argues the trial court erred by failing to merge both involuntary manslaughter convictions as allied offenses for purposes of sentencing because they were committed with the same animus. The trial court refused to merge appellant's convictions for involuntary manslaughter because appellant took "two lives," that of Taisha and her unborn child.

{¶ 70} When a defendant is charged with multiple counts in the same indictment, R.C. 2941.25 provides as follows:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 71} "When determining whether two offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be considered." State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at syllabus. Two or more offenses may result in multiple convictions if any of the following are true: "(1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation." State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.

{¶ 72} "Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Id. at paragraph two of the syllabus. Under R.C. 2941.25(B), offenses of dissimilar import cannot merge, as a matter of law. Id. at ¶ 25.

{¶ 73} Here, the involuntary manslaughter offenses are of dissimilar import because the harm was caused to separate victims: Taisha and her unborn son. See R.C. 2901.01(B)(1)(a)(ii) (the definition of "person" includes "[a]n unborn human who is viable"); see also State v. Scott , 5th Dist. Stark No. 2013CA00063, 2013-Ohio-5875, 2013 WL 6918879, ¶ 28 (holding the termination of a pregnancy, as a result of maternal death caused by the defendant, involved harm to two separate victims). In this situation, it is also appropriate to conclude that each offense caused separate, identifiable harm to Taisha: her death and the unlawful termination of her pregnancy. The trial court was therefore not permitted, as a matter of law, to merge these convictions, and it did not commit error in failing to do so.

{¶ 74} Because the offenses are of dissimilar import, we need not consider whether the offenses were committed with separate animus.

{¶ 75} Appellant's eighth assignment of error is without merit.

{¶ 76} As his seventh assignment of error, appellant argues the trial court erred when it ordered consecutive sentences because it failed to make the statutorily mandated findings, under R.C. 2929.14(C)(4), at the sentencing hearing and in the sentencing entry.

{¶ 77} "The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentencing court." R.C. 2953.08(G)(2). "The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * [t]hat the record does not support the sentencing court's findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise contrary to law." R.C. 2953.08(G)(2)(a)-(b).

{¶ 78} R.C. 2929.41, which governs multiple sentences, provides, in pertinent part: "Except as provided in * * * division (C) of section 2929.14, * * * a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state[.]" R.C. 2929.41(A) (emphasis added).

{¶ 79} Pursuant to R.C. 2929.14(C)(4), a trial court may order separate prison terms for multiple offenses to be served consecutively only if the court finds it "necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public[.]" The trial court must also find that one of the following statutory factors applies:

(a) The offender committed one or more of the multiples offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 80} "In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry[.]" State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. Otherwise, the sentence is contrary to law. Id. The trial court has no obligation, however, to engage in a "word-for-word recitation" of the language in the statute or to set forth its reasons to support its findings, as long as they are discernible in the record. Id. at ¶ 28 -29. "[A]s long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld." Id. at ¶ 29.

{¶ 81} We note there are two somewhat redundant findings required under R.C. 2929.14(C)(4). The trial court must first make the threshold finding that consecutive sentences are "necessary to protect the public from future crime * * *." The court must then proceed to make an additional finding under (a), (b) or (c). The additional finding under subsection (c) requires the court to find that it is because of the offender's history of criminal conduct that consecutive sentences are "necessary to protect the public from future crime by the offender."

{¶ 82} At the sentencing hearing, the trial court stated: "The Court does find that consecutive sentences would be necessary to protect the public from future crimes and to punish the offender, and that considering two innocent lives were stolen from this family, that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the defendant poses to the public." It did not, however, make a finding with regard to the factors listed in R.C. 2929.14(C)(4)(a), (b), and (c). The trial court's judgment entry of sentence is similarly deficient.

{¶ 83} The concurring in judgment only opinion suggests the trial court made a "finding" that it was appellant's prior criminal history that justified the imposition of consecutive sentences. We emphasize, however, that the trial court had not ordered a presentence investigation report. The prosecutor outlined the following allegations, which it referred to as a history of "anger": appellant was suspended from high school in 2008 for fighting; appellant had a disturbance with his mother in 2012, during which he damaged a door in their apartment; appellant assaulted one of Taisha's brothers in 2012, for which no charges were brought, after her brother confronted appellant about his relationship with Taisha; and appellant was arrested for aggravated robbery in 2014, a charge that was dismissed after the complaining witness did not appear before the court for the preliminary hearing.

{¶ 84} Although the prosecutor recited these prior instances of potentially criminal conduct, the trial court did not make a finding that this recitation satisfied the requirement under subsection (c). And while the trial court stated it had "looked at the defendant's record," that record is not before this court. Therefore, without the finding and without the benefit of a presentence investigation report to aid our review, we cannot conclude that the imposition of consecutive sentences was based on a history of criminal conduct.

{¶ 85} Another potentially pertinent factor that could have been considered in this case is R.C. 2929.14(C)(4)(b), specifically, whether "the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct." The trial court stated it had not ordered a presentence investigation "because it was clear, based upon the brutal beating [Taisha] took, that community control would not be acceptable." This is not sufficient for us to conclude the trial court engaged in the correct analysis to overcome the presumption of concurrent sentences.

{¶ 86} Accordingly, we hold that the trial court failed to make the requisite findings at the sentencing hearing allowing for imposition of consecutive sentences. This matter must be remanded for resentencing. The trial court must either impose concurrent sentences or make the appropriate findings to justify the imposition of consecutive sentences on the record and incorporate them into the judgment entry of sentence.

{¶ 87} Appellant's seventh assignment of error has merit.

Conclusion

{¶ 88} The judgment of the Ashtabula County Court of Common Pleas is hereby affirmed in part and reversed in part. This matter is remanded for further proceedings consistent with this opinion.

COLLEEN MARY O'TOOLE, J., concurs in judgment only,

CYNTHIA WESTCOTT RICE, P.J., concurs in judgment only with a Concurring Opinion.

CYNTHIA WESTCOTT RICE, P.J., concurs in judgment only with a Concurring Opinion.

{¶ 89} While I agree with the majority's disposition of assignments of error 1 through 6 and 8, I disagree with its disposition of assignment of error 7 regarding the trial court's imposition of consecutive sentences. The majority remands for re-sentencing; however, a remand is only necessary for the court to prepare a nunc pro tunc entry to incorporate the court's findings regarding consecutive sentences. For this reason, I concur in judgment only.

{¶ 90} The majority states the trial court failed to make findings under the alternative factors listed in R.C. 2929.14(C)(4)(a), (b), and (c). However, the court made findings under R.C. 2929.14(C)(4)(c) (that "[t]he offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender"). Contrary to the majority, the trial court made findings regarding appellant's criminal history. The prosecutor outlined that history. In 2008, while appellant was in a fight at school and the assistant principal tried to break it up, appellant punched him. In 2012, appellant caused a disturbance with his mother during which he kicked in and damaged the door of her home. Later that year, he assaulted the brother of the victim in this case. In 2014, just months before the instant crimes, appellant was arrested for aggravated robbery, the victim of which reported that appellant pistol-whipped him when he would not give appellant his tax-return money. After hearing appellant's criminal history, the court said it had "looked at the defendant's record;" noted that recidivism is likely; and found that consecutive sentences were "necessary to protect the public from future crimes."

{¶ 91} It is worth noting that a plausible argument could be made that the court also made findings under R.C. 2929.14(C)(4)(b) (that at least two of the multiple offenses were committed as part of a "course of conduct" and the harm caused by the multiple offenses was so great or unusual that no single prison term would adequately reflect the seriousness of the offender's conduct). Here, the court found that the two counts of involuntary manslaughter involved two separate victims. Thus, it could be argued the trial court implicitly found appellant committed two separate crimes as part of a course of conduct. Further, the court found: "The defendant took two lives, two innocent lives. It doesn't get any worse than that. It doesn't get more serious than that." Thus, it could be argued the court essentially found that no one sentence would adequately reflect the seriousness of appellant's conduct.

{¶ 92} In any event, since the trial court made the required findings under R.C. 2929.14(C)(4)(c) on the record, there is no need to remand for re-sentencing. However, because the court did not incorporate these findings into its sentencing entry, as required by Bonnell, supra , at ¶ 37, I would remand with instructions for the trial court to enter a nunc pro tunc entry incorporating the court's findings under R.C. 2929.14(C)(4)(c).

{¶ 93} For these reasons, I respectfully concur in judgment only.


author: DIANE V. GRENDELL, J.

text:
    ASHTABULA COUNTY AIRPORT AUTHORITY, et al., Plaintiffs-Appellees, v. Joseph A. RICH, Defendant-Appellant.
    NO. 2017-A-0018
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided December 26, 2017
    David E. Pontius and Jason L. Fairchild, Andrews & Pontius, L.L.C., 4810 State Road, P.O. Box 10, Ashtabula, OH 44005 (For Plaintiff-Appellee, Ashtabula County Airport Authority).
    Thomas L. Feher and Barbara A. Lum, Thompson Hine, L.L.P., 3900 Key Center, 127 Public Square, Cleveland, OH 44114 (For Plaintiff-Appellee, Dwight H. Bowden).
    David A. McGee, Svete & McGee Co., L.P.A., 100 Parker Court, Chardon, OH 44024 (For Defendant-Appellant).
   DIANE V. GRENDELL, J.

{¶ 1} Defendant-appellant, Joseph A. Rich, appeals from the judgments of the Ashtabula County Court of Common Pleas, granting plaintiffs-appellees, the Ashtabula County Airport Authority and Dwight H. Bowden's, Motion for Partial Summary Judgment and awarding them past due rent and attorney's fees. The issues to be determined in this case are whether a claim for rent that is not yet due and payable at the time a complaint is filed is a compulsory counterclaim and whether a counterclaim relating to indemnification for attorney's fees incurred during an underlying claim is compulsory. For the following reasons, we affirm in part, reverse in part, and remand the judgment of the court below.

{¶ 2} On February 17, 2015, appellees filed a Complaint against Rich. It alleged that, in 2013, Rich failed to comply with the terms of a lease agreement he had entered into with Ashtabula Airport Authority, under which Rich rented a portion of an aircraft hangar. The Complaint alleged that Rich breached the agreement by discontinuing use of electric power and using a portable generator within the hangar. After being notified via letter "of the 30-day termination of his tenancy * * * effective September 30, 2013," Rich did not vacate but instead filed suit against the appellees (Ashtabula County Court of Common Pleas Case No. 2013 CV 756). Rich ultimately left the hangar in December 2014.

{¶ 3} The appellees' Complaint raised two counts. Count One was for Breach of Contract for Unpaid Rent from October 2013 through December 2014. Count Two was for Indemnification for Attorney's Fees which were incurred when appellees defended the 2013 action brought by Rich in relation to the lease.

{¶ 4} Rich filed an Answer on April 16, 2015, arguing, inter alia, that the claims were "barred by Ohio Civ. R. 13 and the rules governing compulsory counterclaim."

{¶ 5} Appellees filed a Joint Motion for Partial Summary Judgment on September 2, 2015. They argued that Rich refused to vacate the hangar for over a year after their request to terminate the lease and did not make payments for rent from October 1, 2013 to December 15, 2014. Regarding the indemnification claim, they contended that the lease required Rich to pay for the attorney's fees they incurred from defending prior suits in relation to the lease and Rich's lack of compliance.

{¶ 6} Rich filed a Motion for Summary Judgment and Brief in Opposition on January 14, 2016. He argued that the rent arrearage is barred as a compulsory counterclaim that appellees failed to raise in previous proceedings. He also contended that the indemnity provision was barred as against public policy. The parties subsequently filed a reply and sur-reply.

{¶ 7} The following pertinent deposition testimony and exhibits were presented on summary judgment:

{¶ 8} Rich testified that he signed an agreement to lease the hangar for 2013. The terms of the lease provided, in pertinent part, for monthly payment of rent due on the 1st but accepted until the 21st prior to a determination of default, and required that no alterations be made to the property and that Rich follow the Ashtabula County Airport Rules and Regulations.

The lease contained an "Indemnification" clause which provided that the lessee:

shall indemnify, defend and save harmless Lessor, its agents, employees, trustees, officers, directors and contractors from and against any and all loss, [and] cost (including attorneys' fees) * * * arising from or in connection with (i) Lessee's use of, occupancy of, or activities in or about the Hangar Space; (ii) any breach or default by lessee of the provisions of this Agreement; [and] (iii) any negligent act or willful misconduct by Lessee * * *.

{¶ 9} Rich indicated that at some point during 2013, he requested that First Energy suspend the electricity to his hangar. He confirmed that he used a generator within his hangar, as well as installed an outlet for use with the generator. Dwight Bowden, the board president of the Ashtabula County Airport, testified that a prohibition against generators in the Rules and Regulations was in place to protect the safety of the airport.

{¶ 10} An August 13, 2013 letter from the Airport Authority's counsel to Rich indicated that his tenancy would be terminated on September 30, 2013, for violating the lease agreement due to his "discontinuation of electric power" and use of the portable generator. Rich testified that once he received the letter, he "immediately took the generator out, took the wiring out, [and] put it back to its regular state." Rich agreed that his plane remained in the hangar after receiving this letter from October 2013 through December 15, 2014, when he vacated the airport, but paid no rent for those months.

{¶ 11} On October 7, 2013, in Ashtabula County Court of Common Pleas Case No. 2013 CV 756, Rich filed a Complaint against the appellees and the Ashtabula Airport Board of Trustees, raising claims for Breach of Contract, Discriminatory Conduct, Breach of Good Faith, Declaratory Judgment, Breach of Fiduciary Duty, Fraud, and a violation of 42 U.S.C. §§ 1983 and 88. These claims arose primarily from the appellees' "attempt to terminate" and failure to extend the lease. After the matter was removed to federal court in relation to a First Amendment retaliation claim, it was remanded back to the Court of Common Pleas for resolution of the remaining claims.

{¶ 12} Ashtabula County Airport Authority filed a Landlord's Complaint on October 25, 2013, in the Ashtabula County Court, Eastern Area, asking for restitution of the premises and also alleging that Rich was in default for failure to pay rent in October 2013 and should be ordered to pay rent for any future months he did not tender payment. The court dismissed the matter on November 25, 2013, stating that it should have been raised in the Common Pleas Court, which had "first acquired jurisdiction." This decision was affirmed in Ashtabula Cty. Airport Auth. v. Rich , 11th Dist. Ashtabula No. 2013-A-0069, 2014-Ohio-4288, 2014 WL 4824938.

{¶ 13} On December 12, 2014, the Ashtabula County Court of Common Pleas issued a Judgment Entry in Case No. 2013 CV 756, granting the defendants' Motion for Judgment on the pleadings. It held that either party had the right to terminate the lease, without cause, by giving thirty days prior written notice to the other party, a right which the defendants properly exercised. Thus, Rich's claims were dismissed.

{¶ 14} In the present matter, following review of the foregoing summary judgment motions, evidence, and proceedings, in a March 30, 2016 Judgment Entry, the trial court granted the appellees' Joint Motion for Partial Summary Judgment and denied Rich's Motion for Summary Judgment. It found the claim for rent was not a compulsory counterclaim since, with the exception of the October 2013 rent, the remaining rent became due only after the appellees had filed their answer in Rich's underlying 2013 CV 756 claim. The court concluded that the indemnification clause for attorney's fees in the lease agreement was not unconscionable, and was enforceable for the purpose of collecting attorney's fees. Rich's subsequent Motion for Reconsideration was denied.

{¶ 15} Following a hearing on the issue of damages, the court found that Ashtabula County Airport Authority should be awarded an amount of $57,575 for attorney's fees and $3,132.38 for unpaid rent, and Bowden should be awarded an amount of $101,930 for attorney's fees.

{¶ 16} Rich timely appeals and raises the following assignments of error:

{¶ 17} "[1.] The trial court erred in denying Appellant, Joseph Rich's, Motion for Summary Judgment and granting Appellees, Ashtabula Airport Authority and Dwight Bowden's Motion for Summary Judgment on the issue of liability for attorney fees and rent arrearage under the hangar lease at issue.

{¶ 18} "[2.] The damage award rendered is against the manifest weight of the evidence and/or based upon inadmissible evidence."

{¶ 19} In his first assignment of error, Rich argues that the trial court erred in granting summary judgment in favor of the appellees.

{¶ 20} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the evidence shows "that there is no genuine issue as to any material fact" to be litigated, (2) "the moving party is entitled to judgment as a matter of law," and (3) "it appears from the evidence * * * that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence * * * construed most strongly in the party's favor."

{¶ 21} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). "A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision." (Citation omitted.) Peer v. Sayers , 11th Dist. Trumbull No. 2011-T-0014, 2011-Ohio-5439, ¶ 27, 2011 WL 5028693.

{¶ 22} Rich argues that both the attorney's fees/indemnification claim and the request for the rent arrearage should have been raised in the prior proceedings he initiated, as they were compulsory counterclaims, and cannot now be raised in a separate lawsuit.

{¶ 23} As an initial matter, the appellees argue that Rich cannot advance a res judicata defense since he did not raise it in his Answer. However, Rich's Answer stated as a defense that the matters raised in the Complaint should have been previously brought through a compulsory counterclaim, the same contention raised here. Thus, we will consider the merits of this argument.

{¶ 24} Pursuant to Civ.R. 13(A), "[a] pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction."

{¶ 25} "The two-pronged test for applying Civ.R. 13(A) is: (1) does the claim exist at the time of serving the pleading * * *; and (2) does the claim arise out of the transaction or occurrence that is the subject matter of the opposing claim." Geauga Truck & Implement Co. v. Juskiewicz , 9 Ohio St.3d 12, 14, 457 N.E.2d 827 (1984). The Supreme Court held that a claim becomes a compulsory counterclaim where it "is complete and exists before the time the [defendant] is required under Civ.R. 12(A)(1) and (B) to serve his answer and counterclaim." Id. at 15, 457 N.E.2d 827. But see Kerr v. Lakewood Shore Towers, Inc. , 8th Dist. Cuyahoga No. 93462, 2010-Ohio-265, 2010 WL 323424, ¶ 23 (considering whether the counterclaim existed at the time the forcible entry and detainer complaint was initiated).

{¶ 26} "To determine whether a counterclaim is compulsory, the Supreme Court of Ohio has adopted the 'logical relation' test." Rymers v. Rymers , 11th Dist. Lake No. 2011-L-064, 2012-Ohio-1675, 2012 WL 1288726, ¶ 48. This test provides that "a compulsory counterclaim is one which is logically related to the opposing party's claim where separate trials on each of their respective claims would involve a substantial duplication of effort and time by the parties and the courts." Rettig Ents., Inc. v. Koehler, 68 Ohio St.3d 274, 626 N.E.2d 99 (1994), paragraph two of the syllabus.

{¶ 27} As to the rent arrearage, Rich argues that it should have been raised during his 2013 lawsuit. The appellees argue that the claim for a rent arrearage did not exist at the time of the first pleading, October 7, 2013, since Rich was not in default for October rent until October 21, 2013, and that the only claim in existence when the appellees' Answer was filed on November 6, 2013, was for October rent. We note that the trial court decided that October rent should not be awarded given these circumstances.

{¶ 28} We must consider, then, whether the claim for November 2013 through December 2014 rent was a compulsory counterclaim. As noted above, for the compulsory counterclaim rule to apply, the claim must exist at the time of the pleading. At the time of the filing of both the complaint and answer in Rich's lawsuit, no such rent was due or owed. It was not clear at that point whether Rich would remain as a tenant, since he had been asked to leave and had not signed a new lease for 2014.

{¶ 29} In relation to rent claims in general, it has been held that recovery for a monthly installment of rent due when an action has commenced does not bar recovery for subsequent installments due under the lease. Ogle Leasing Co. v. Submarine Galley, Inc. , 2d Dist. Montgomery No. 11267, 1990 WL 1780, *4 (Jan. 11, 1990) ; see Humitsch v. Collier , 11th Dist. Lake No. 99-L-099, 2001 WL 20733, *3 (Dec. 29, 2000). Compare Lujan v. Smith , 6th Dist. Lucas No. L-83-197, 1983 WL 6990, *5 (Nov. 11, 1983) (noting that each default for rent may be the subject of an independent action). Under this reasoning, we see no basis to conclude that appellees could not wait to request rent that was not yet owed at the time the prior lawsuit was initiated, especially given that it was unclear how long Rich would remain in possession or if he would continue to pay rent. It is noteworthy that Rich testified he had a credit card on file with appellees and that he informed them they could take out rent while he continued to remain in breach of the lease, further supporting a conclusion that no claim existed at the time the complaint and answer were filed in Rich's lawsuit.

{¶ 30} Rich contends that a claim for past rent was also barred by the decision of the Ashtabula County Court, Eastern Area (2013 CVG 335), in which Ashtabula County Airport Authority filed a forcible entry and rent claim, as well as this court's decision on appeal in that case. In 2013 CVG 335, the judge concluded that it was without jurisdiction because the Common Pleas Court had "first acquired jurisdiction," and that "this claim must have been filed as a counterclaim in that action." This does not amount to a holding that the claim now raised was compulsory. Moreover, on appeal, this court merely noted that Civ.R. 13(A) is not clearly inapplicable in a forcible entry and detainer action, and emphasized that the real issue was whether the Eastern Area court had jurisdiction. Ashtabula Cty. Airport Auth. , 2014-Ohio-4288, 2014 WL 4824938, at ¶ 22 ("Whether the civil rules require this [forcible entry action] to be filed as a compulsory counterclaim is not relevant to whether one court has jurisdiction to the exclusion of others."). No ruling was made as to the issue presently before this court, whether the rent arrearages were a compulsory counterclaim in the common pleas proceedings.

{¶ 31} For these reasons, we find that the lower court correctly determined the rent claim was not a compulsory counterclaim and its merits were properly considered and ruled upon by the court.

{¶ 32} Rich also argues that the indemnification claim was barred by Civ.R. 13(A) and should have been raised in the prior proceedings rather than in the present lawsuit.

{¶ 33} The indemnification for attorney's fees claim in this matter arises from a clause in the lease that requires Rich to pay such fees related to any claims arising from or relating to the lease or from his breach of the lease.

{¶ 34} The trial court did not address Rich's claim that the attorney's fees request was barred due to the appellees' failure to raise this as a compulsory counterclaim in the prior action. Upon review of this issue, we find that the indemnification for attorney's fees claim should have been raised in Rich's initial lawsuit, Ashtabula Court of Common Pleas Case No. 2013 CV 756.

{¶ 35} Courts have recognized that claims for attorney's fees should be raised as compulsory counterclaims when they relate to the underlying litigation. L.M. Lignos Ents. v. Beacon Ins. Co. of Am. , 8th Dist. Cuyahoga No. 70816, 1997 WL 67755, *2 (Feb. 13, 1997) ; Rome Hilliard Self Storage v. Conkey , 10th Dist. Franklin No. 02AP-973, 2003-Ohio-5038, 2003 WL 22177392, ¶ 12.

{¶ 36} Here, the elements of the two-prong test and "logical relation" test for compulsory counterclaims outlined above are met. First, the attorney's fees claim existed at the time of the pleadings. Upon the filing of the complaint, litigation had commenced and the appellees began to be represented by counsel. While the exact amount of the fees to be recovered could not yet be determined, this is no different than any other claim for attorney's fees. Bowden argues that, since he did not hire counsel until after the initial complaint and answer were filed, his claim did not yet exist. Such a contention is questionable, given that he was represented through the filing of an answer made on behalf of all defendants and that he was in the process of obtaining separate counsel who represented him for the entire length of the proceedings. Furthermore, Bowden argues that the basis for the claim of indemnification was Rich's breach of the lease, an event that took place even before the filing of Rich's lawsuit.

{¶ 37} The appellees cite case law arguing that indemnity does not apply until a loss is suffered. See Casto v. Sanders , 11th Dist. Portage No. 2004-P-0060, 2005-Ohio-6150, 2005 WL 3096637, ¶ 38 ; Stengel v. Columbus , 74 Ohio App.3d 608, 613, 600 N.E.2d 248 (10th Dist.1991). These cases provide little guidance as they relate to a specific loss in an insurance claim and/or statutory indemnity and do not address the concern of when a "loss" occurs in relation to recovery of attorney's fees. Casto is also dissimilar in that it relates to a third-party indemnifying a loss rather than a direct claim for attorney's fees from the lessor to the lessee.

{¶ 38} Rome Hilliard , cited above, provides guidance for the particular circumstances of this case. In Rome Hilliard , Conkey rented a parking space from Rome Hilliard, and signed a contract agreeing to indemnify Rome Hilliard for attorney's fees arising from his use of the premises. Conkey sued Rome Hilliard when his trailer was stolen from the premises. 2003-Ohio-5038, at ¶ 2-5. After that litigation had ended, Rome Hilliard brought a complaint for attorney's fees under the indemnification clause, which was dismissed due to failure to file the claim as a compulsory counterclaim in the initial litigation. Id. at ¶ 8-9. The appellate court held that the counterclaim was compulsory, since the attorney's fees related directly to the subject matter of the initial claim. It emphasized that the "claim for attorney fees involves duplicating evidence previously explored in the ancillary litigation. The core facts in the present litigation would be substantially the same, if not identical, to those in the ancillary litigation because only one set of events gave rise to all of the claims: the storage contract was the basis of both the ancillary and the present litigation." Id. at ¶ 16. See also L.M. Lignos , 1997 WL 67755, at *1-2 (when the appellant's insurer brought an action for declaratory judgment to determine whether it had a duty to defend appellants, it was required to pursue as a compulsory counterclaim the request for reimbursement for attorney's fees in defending the declaratory judgment action).

{¶ 39} The same analysis applies here and the second prong of the compulsory counterclaim test is satisfied, since the claim for attorney's fees arose directly out of the prior claim and "involve[d] many of the same factual issues, or the same factual and legal issues." (Citation omitted.) Rettig , 68 Ohio St.3d at 279, 626 N.E.2d 99. Under the logical relation test, there was a duplication of time and effort in hearing the attorney's fees issue in a separate matter, as they related entirely to the tasks performed in the initial lawsuit. The judge there was in the best position to evaluate the work that occurred in the matter. Instead, filing a separate lawsuit merely duplicated much of the work, restating the facts from the prior case in many pleadings, as well as including attachments of various judgments from the prior proceedings that had to be considered and evaluated by a new judge. This duplication of effort was entirely unnecessary in this matter.

{¶ 40} Further, to find that the appellees were not required to file their counterclaim for attorney's fees in the prior proceeding merely because they had just hired counsel at that time or were in the process of doing so is inconsistent with the clear objective of Civ.R. 13(A). The purpose of Civ.R. 13(A), is to "avoid a multiplicity of actions and to achieve a just resolution by requiring in one lawsuit the litigation of all claims arising from common matters." Rettig at 278, 626 N.E.2d 99 ; Carlton v. Alar Dev. Co. , 11th Dist. Portage No. 2006-P-0045, 2006-Ohio-6877, 2006 WL 3772290, ¶ 12. There was no question at the time the proceedings began that the attorney's fees issue was intertwined with the underlying issues relating to the lease and the breach of the lease, as discussed above.

{¶ 41} Since the issue of attorney's fees in the underlying proceeding was a compulsory counterclaim, we reverse the court's judgment awarding attorney's fees in favor of the appellees. However, as to the award of rent in the present proceedings, since it was properly raised in this matter, attorney's fees that were expended in litigating that claim only may be awarded. On that basis, we remand to the trial court for the sole issue of determining and awarding the amount of attorney's fees expended only in relation to the collection of rent owed by Rich to the Ashtabula Airport Authority that was sought in the present lawsuit.

{¶ 42} It is necessary to address Rich's additional claim that the indemnification clause that allows for collection of attorney's fees in relation to the lease is unconscionable and inapplicable.

{¶ 43} The indemnification clause allows Ashtabula Airport Authority to recover attorney's fees "arising from or in connection with (i) Lessee's use of, occupancy of, or activities in or about the Hangar Space [and] (ii) any breach or default by lessee of the provisions of this Agreement." It is clear that attorney's fees expended to collect the rent payment for the months Rich continued to remain in the hangar arise from Rich's use and occupancy of the hangar. As such, the indemnification clause is applicable.

{¶ 44} Rich also argues that the indemnification clause is unconscionable and in violation of public policy because it requires him to pay attorney's fees any time he brings litigation, regardless of whether he wins or loses.

{¶ 45} We find no public policy violation. As applicable to the present case, this clause is fair, as it merely requires Rich to pay attorney's fees in relation to rent that he owed. Furthermore, "[i]n considering whether a provision in a contract is against 'public policy[,]' * * * we must remember that the freedom to contract is fundamental, and that we should not lightly disregard a binding agreement, unless it clearly contravenes some established or otherwise reasonable public interest." (Citation omitted.) Hurst v. Ent. Title Agency, Inc. , 157 Ohio App.3d 133, 2004-Ohio-2307, 809 N.E.2d 689, ¶ 18 (11th Dist.). We find that Rich voluntarily chose to enter this contract and has not established that it clearly convenes a public interest.

{¶ 46} To the extent that Rich contends that the clause is unconscionable, we disagree.

{¶ 47} "Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." (Citation omitted.) Lake Ridge Academy v. Carney , 66 Ohio St.3d 376, 383, 613 N.E.2d 183 (1993).

{¶ 48} "Substantive unconscionability goes to the specific terms of the contract. * * * [T]he court should observe whether the terms of the contract are commercially reasonable." Bayes v. Merle's Metro Builders/Blvd. Constr., LLC , 11th Dist. Lake No. 2007-L-067, 2007-Ohio-7125, 2007 WL 4564404, ¶ 9. "Procedural unconscionability concerns the formation of the agreement, and occurs where no voluntary meeting of the minds was possible." Porpora v. Gatliff Bldg. Co. , 160 Ohio App.3d 843, 2005-Ohio-2410, 828 N.E.2d 1081, ¶ 7 (9th Dist.). "In order to determine whether or not a contract provision is procedurally unconscionable, courts consider the relative bargaining positions of the parties, whether the terms of the provision were explained to the weaker party, and whether the party claiming that the provision is unconscionable was represented by counsel at the time the contract was executed" as well as whether the service or good could be otherwise obtained, i.e., an absence of meaningful choice. Id. ; Collins v. Click Camera & Video, Inc. , 86 Ohio App.3d 826, 834, 621 N.E.2d 1294 (2d Dist.1993). " One must allege and prove a 'quantum' of both prongs in order to establish that a particular contract is unconscionable." Collins at 834, 621 N.E.2d 1294.

{¶ 49} Here, Rich fails to satisfy the procedural unconscionability prong and does not show an absence of meaningful choice. As the trial court noted, he is a businessman, and holds a master's degree, as well as being a flight instructor who conducted business out of the Ashtabula Airport. As to meaningful choice, while there was some testimony by Bowden that there may not be a similar type of hangar in Ashtabula County, he was aware of other airports in the area with different types of hangars, as well as an airport in Cuyahoga County with similar hangars. That Rich found it more convenient to use the Ashtabula Airport to store his airplane does not mean he was deprived of meaningful choice to reject the terms of the lease, including the indemnification clause. In his testimony, in fact, he highlighted some concerns he had with the lease, but chose to voluntarily sign it. He fails to prove the elements of procedural unconscionability and, thus, cannot prevail on this contention. Collins at 834, 621 N.E.2d 1294. For these reasons, we reject the argument that the provision at issue was unconscionable.

{¶ 50} The first assignment of error is with merit in part, to the extent discussed above. The lower court, on remand, is ordered to consider attorney's fees to be awarded only as they relate to the collection of past due rent in the present lawsuit.

{¶ 51} In his second assignment of error, Rich argues that the attorney's fees award was against the weight of the evidence or based on inadmissible evidence. Since this award has been reversed and remanded for recalculation of appropriate damages, these arguments are rendered moot.

{¶ 52} The second assignment of error is moot.

{¶ 53} For the foregoing reasons, the judgments of the Ashtabula County Court of Common Pleas, granting summary judgment in favor of appellees and awarding them attorney's fees and rent, are affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Costs to be taxed against the parties equally.

CYNTHIA WESTCOTT RICE, P.J., concurs,

THOMAS R. WRIGHT, J., concurs in judgment only.

      While Rich did not discuss the compulsory counterclaim issue as to attorney's fees/indemnification in his initial summary judgment motion, it was raised both in his answer and in the subsequent summary judgment reply, to which the appellees had the chance to respond. As this court has held, a party which fails to request that a new argument raised in a reply be stricken cannot argue that it is "ambushed" by a new argument or assert waiver. Staschiak v. Certified Logistics, 11th Dist., 60 N.E.3d 824, 2016-Ohio-897, ¶ 18.


author: M. POWELL, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jeremy J. MARSHALL, Defendant-Appellant.
    NO. CA2016-11-031
    Court of Appeals of Ohio, Twelfth District, Madison County.
    December 28, 2017
    Stephen J. Pronai, Madison County Prosecuting Attorney, Kirsten Gross, 59 North Main Street, London, Ohio 43140, for plaintiff-appellee
    Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for defendant-appellant
   M. POWELL, J.

{¶ 1} Defendant-appellant, Jeremy Marshall, appeals from his domestic violence conviction in the Madison County Municipal Court. For the reasons discussed below, this court affirms Marshall's conviction.

{¶ 2} On April 29, 2016, the Madison County Sheriff's Office filed a complaint charging Marshall with one count of domestic violence, a violation of R.C. 2919.25(C), a fourth-degree misdemeanor. The complaint arose after Marshall called 9-1-1 and alleged that his mother kicked him during a fight. A responding deputy determined that Marshall was the primary aggressor and arrested him.

{¶ 3} The matter proceeded to a bench trial in October 2016. The state introduced testimony from Kathleen Marshall (Marshall's mother), Beth Ann Marshall (Marshall's sister), and the responding deputy. The court found Marshall guilty. Marshall appeals, raising four assignments of error. For ease of analysis, we address certain assignments of error collectively and out of order.

{¶ 4} Assignment of Error No. 3:

{¶ 5} THE PROSECUTION FAILED TO PRESENT SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION, BY FAILING TO MEET ALL THE ELEMENTS OF THE OFFENSE BY PROOF BEYOND A REASONABLE DOUBT.

{¶ 6} Assignment of Error No. 4:

{¶ 7} THE DEFENDANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 8} In his third and fourth assignments of error Marshall challenges the sufficiency and the weight of the evidence supporting his conviction. Marshall argues that the state failed to submit sufficient evidence that he committed a threatening act towards Kathleen or that Kathleen believed that Marshall would cause her physical harm. Marshall otherwise argues that his conviction was not supported by the weight of the evidence because the court found that Kathleen was not afraid of Marshall.

{¶ 9} When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Bradbury , 12th Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, 2016 WL 4037002, ¶ 16. The "relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 10} A manifest weight of the evidence challenge, on the other hand, examines the "inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, 2012 WL 1940800, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id. An appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal. Id. at ¶ 18. A "determination that a conviction is supported by the manifest weight of the evidence will also be dispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, 2013 WL 226898, ¶ 19.

{¶ 11} The court convicted Marshall of domestic violence in violation of R.C. 2919.25(C), which provides that "[n]o person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member." "Physical harm," as defined by R.C. 2901.01(A)(3), "means any injury, illness, or other physiological impairment, regardless of its gravity or duration." For a violation of R.C. 2919.25(C), the state must prove that the victim believed the offender would cause him or her imminent physical harm at the time the incident took place. State v. Hart , 12th Dist. Warren No. CA2008-06-079, 2009-Ohio-997, 2009 WL 580808, ¶ 21, citing State v. Campbell , 12th Dist. Butler No. CA2007-12-313, 2008-Ohio-5542, 2008 WL 4694996, ¶ 15, in turn citing Hamilton v. Cameron , 121 Ohio App.3d 445, 449, 700 N.E.2d 336 (12th Dist.1997). Thus, the victim's state of the mind is an essential element of the crime. Hamilton at 449, 700 N.E.2d 336.

{¶ 12} Kathleen testified that she was at her daughter Beth Ann's home on April 29, 2016. Marshall was her son and he lived with Beth Ann. Kathleen and Marshall did not get along and when there were arguments, Kathleen always got the "brunt of it." That day, Marshall and Beth Ann were quarrelling because Beth Ann asked him to move out of her home. Marshall was irate and was outside of the home using scissors to destroy loose gutters that were to be installed on the house.

{¶ 13} Kathleen, Beth Ann, and Beth Ann's child went into a bedroom in the home and locked the door. Kathleen explained that she wanted to separate herself from Marshall, even though the argument did not involve her. Marshall came back inside. He then threatened that he would commit suicide and that Beth Ann would come home to blood everywhere. Kathleen responded by yelling that Marshall would never babysit Beth Ann's son alone again.

{¶ 14} Marshall managed to unlock the bedroom door, possibly with the scissors he had been using to destroy the gutters. He entered the room and approached Kathleen in "attack mode." Kathleen, who had been sitting on the bed, stood up as he approached. Marshall then put his forehead against Kathleen's forehead and forced her back on to the bed. He was on top of her "on all fours." Kathleen testified that she was afraid because she was not sure if Marshall would hit her. Kathleen pulled her knees up as a barrier between she and her son, "[t]o keep him from crushing me, to keep him from whatever he was going to do." Kathleen eventually pushed Marshall away using her feet, then she kicked him. Beth Ann corroborated that Marshall was on top of Kathleen and that he "got into my mother's space."

{¶ 15} After thoroughly reviewing the record, this court concludes that the trial court did not lose its way in finding Marshall guilty of domestic violence in violation of R.C. 2919.25(C). The evidence, if believed, would allow a rational factfinder to conclude, beyond a reasonable doubt, that the circumstances supported a finding that Marshall would know that aggressively approaching his mother and forcing her onto the bed using his forehead would cause Kathleen to believe that Marshall would cause her imminent physical harm.

{¶ 16} We reject Marshall's argument that the evidence did not support the conclusion that he committed a threatening act. Marshall's physical behavior was obviously intended to intimidate his mother.

{¶ 17} We also reject the contention that the state failed to prove that Kathleen believed that Marshall would cause her physical harm because she was not afraid. R.C. 2919.25(C) has no element that the victim fear physical harm. Rather, the statute requires only that the defendant's actions cause the victim to believe imminent physical harm will occur. In this regard, Kathleen testified that she was not sure what her son would do to her but she anticipated being physically struck. Kathleen's action of bringing her knees up and creating a defensive barrier between her and Marshall bolsters the conclusion that she anticipated a physical attack. Accordingly, neither argument has any merit. Our decision with respect to the manifest weight of the evidence is also dispositive of the issue of the sufficiency of the evidence. This court overrules Marshall's third and fourth assignments of error.

{¶ 18} Assignment of Error No. 1:

{¶ 19} OHIO LAW DOES NOT RECOGNIZE NONVERBAL THREATS OF FORCE BY DEFINITION.

{¶ 20} In his first assignment of error, Marshall argues that his act of entering the locked room and then pushing Kathleen onto the bed with his forehead was insufficient to establish a threat of force. Marshall argues, without citation to authority, that a threat of force must be verbal and a nonverbal threat of force cannot sustain a conviction under R.C. 2919.25(C). The state argues that nonverbal conduct can constitute a threat of force and cites a case from this district where nonverbal conduct constituted a threat of force. State v. Rhoads , 12th Dist. Clermont No. CA2012-05-040, 2013-Ohio-152, 2013 WL 221512. Rhoads involved a conviction under R.C. 2919.25(C) where the estranged boyfriend of the victim drove his truck toward the victim at a high rate of speed before braking at the last second. Id. at ¶ 1, 6, 12. The victim and her companion saw the defendant grinning and glaring at them immediately after the incident. Id. at ¶ 13, 15. The victim testified that she believed that the defendant was threatening harm. Id. at ¶ 14.

{¶ 21} The Revised Code does not define "threat" or "threat of force" as used in R.C. 2919.25(C). Any word left undefined by statute is to be accorded its common, everyday meaning. State v. Dorso , 4 Ohio St.3d 60, 62, 446 N.E.2d 449 (1983). Webster's Dictionary's defines threat as:

an indication of something impending and [usually] undesirable or unpleasant * * * an expression of an intention to inflict evil, injury, or damage on another [usually] as retribution or punishment for something done or left undone * * * something that by its very nature or relation to another threatens the welfare of the latter.

Webster's Third New International Dictionary 2382 (1993). (Emphasis added.) Accordingly, the common meaning of a threat is not limited to verbal communications to harm another.

{¶ 22} As implied in Rhoads , this court agrees that nonverbal conduct can establish a threat of force if the defendant acted knowingly and the conduct caused the victim to anticipate imminent physical harm. There is no logical support for Marshall's claim that a threat of force must be accompanied by a verbal statement. This court overrules Marshall's first assignment of error.

{¶ 23} Assignment of Error No. 2:

{¶ 24} THE DEFENDANT DOES NOT QUALIFY AS A "FAMILY OR HOUSEHOLD MEMBER" AS THE RECIPIENT OF THE "THREAT."

{¶ 25} In his second assignment of error, Marshall presents an extension of his first assignment of error, i.e., that Ohio does not recognize nonverbal conduct for purposes of establishing a threat of force. Marshall argues that because the only verbal threat of force in evidence was from Marshall himself (his threat to commit suicide), he cannot be a victim because he cannot be related to himself. This argument has no merit. As discussed, the underlying premise of Marshall's first assignment of error, that a threat of force must be verbal, is erroneous. Furthermore, as detailed above, the threat of force involved in the offense was directed at Kathleen. It was undisputed that Kathleen is Marshall's mother. Therefore, Kathleen is a family member pursuant to the definition of "family or household member" as set forth in R.C. 2919.25(F). This court overrules Marshall's second assignment of error.

{¶ 26} Judgment affirmed.

HENDRICKSON, P.J., and RINGLAND, J., concur.

      Kathleen also testified that she was afraid that Marshall would use the scissors on her. The testimony at trial was inconsistent as to whether Marshall was holding scissors during the physical altercation. Beth Ann recalled seeing them sitting on a box. The court found that Marshall did not have scissors in his hands during the altercation.