author: JENSEN, J.

text:
    STATE of Ohio, Appellee v. Aaron C. BOLTON, Appellant
    No. E-16-080
    Court of Appeals of Ohio, Sixth District, Erie County.
    Decided: April 20, 2018
    Kevin J. Baxter, Erie County Prosecuting Attorney, for appellee.
    R. J. Budway, Lorain, for appellant.
    DECISION AND JUDGMENT
   JENSEN, J.

{¶ 1} This is an appeal from a judgment of the Erie County Court of Common Pleas which, following a jury trial, found appellant guilty of one count of assault. For the reasons set forth below, the judgment of the trial court is affirmed.

{¶ 2} Appellant, Aaron C. Bolton, was a uniformed Vermilion police sergeant on duty the early morning hours of September 6, 2015. Appellant was the first of three uniformed Vermilion police officers to respond to a dispatch call for a disturbance at Rudy's Bar & Grill where Jacob Johnson, a 21-year-old bar patron, was involved in a fight with others. Mr. Johnson was eventually arrested on two charges of resisting arrest and one charge of disorderly conduct. However, as a result of appellant's actions as a police officer against Mr. Johnson in the course of that arrest, criminal charges were pursued against appellant.

{¶ 3} On April 14, 2016, a Wood County Grand Jury indicted appellant for Count 1, felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree felony with a specification that appellant did cause or threaten to cause physical harm during the commission of the offense, and Count 2, assault, in violation of R.C. 2903.13(A), a first-degree misdemeanor.

{¶ 4} On October 27, 2016, the lesser included offense to Count 1, aggravated assault, in violation of R.C. 2903.12(A), was added and included in the trial court's instructions to the jury.

{¶ 5} Following the jury trial held October 24 to 27, 2016, the jury found appellant not guilty of Count 1, felonious assault and the lesser included Count 1 offense of aggravated assault, and found appellant guilty of Count 2, assault. The jury verdict was journalized November 11, 2016.

{¶ 6} Subsequently on December 12, 2016, the trial court held the sentencing hearing for Count 2. The trial court sentenced appellant to serve a prison term of 180 days, which was suspended for the imposition of three years of community sanctions after first serving 120 days in prison. The trial court journalized the sentencing judgment entry on December 12, 2016.

{¶ 7} It is from the trial court's December 12, 2016, journalized judgment entry that appellant filed his appeal on December 13, 2016.

{¶ 8} Appellant sets forth one assignment of error:

The trial court erred when the jury found Appellant guilty of one count of Assault because they believed that force used by Appellant was not reasonable and necessary to arrest Jacob Johnson.

{¶ 9} Appellant argues he met his burden of proof for the affirmative defense of use of force in the exercise of his official police duties because the force he used was reasonable and necessary under the specific circumstances he faced to secure the lawful arrest of Mr. Johnson. Appellant argues that a preponderance of evidence at trial showed appellant's reasonable use of force was continuously adjusted in response to Mr. Johnson's changing conduct during the course of his resisting arrest. Appellant urges this court to reverse his conviction because the "jury clearly ignored the trial court's jury instructions regarding the use of force and [his] affirmative defense" by relying on "the prohibited territory of second-guessing and 'armchair reflection.' This includes comparative speculation, couched in backward-looking terms, about what the officer 'could have' or 'might have' done differently, and whether he 'should have' employed alternate or lesser means of force, or different tactics." Finally, appellant argues it is not clear which specific action by appellant was considered by the jury to be the "actual act of misdemeanor assault."

{¶ 10} In response appellee argues the trial court decision was not against the manifest weight of the evidence. Appellant did not meet his burden of proof for the affirmative defense because the evidence by appellee's expert witness, Samuel Faulkner, showed "appellant's conduct was with malicious purpose, in bad faith, and that appellant acted in a wanton, reckless manner." Appellee argues numerous witnesses "testified that appellant's actions were not reasonable." Appellee further argues the evidence did not show "that Johnson was a danger to the officers or was capable of flight."

{¶ 11} "A challenge to the weight of the evidence questions whether the greater amount of credible evidence was admitted to support the judgment than not." Flowers v. Siefer , 6th Dist., 2017-Ohio-1310, 88 N.E.3d 599, ¶ 94. This court has repeatedly stated that in determining whether a verdict is against the manifest weight of the evidence, we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way to create such a manifest miscarriage of justice as to require a new trial. State v. Reynolds , 6th Dist., 2017-Ohio-1478, 89 N.E.3d 235, ¶ 47. A conviction will be overturned only in exceptional cases. Id. Every "reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts." Flowers at ¶ 94.

{¶ 12} It is well established that the trier of fact has the sole duty to decide what weight should be given to the testimony of any witness, including experts. Kokitka v. Ford Motor Co. , 73 Ohio St.3d 89, 92, 652 N.E.2d 671 (1995) ; State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. We will not reverse those decisions absent an abuse of discretion where the record shows the decision was unreasonable, arbitrary or unconscionable. Flowers at ¶ 59 ; Kinn v. HCR ManorCare , 2013-Ohio-4086, 998 N.E.2d 852, ¶ 14 (6th Dist.).

{¶ 13} In order for the jury to find appellant guilty of assault on or about September 6, 2015, in Erie County, Ohio, appellee must prove beyond a reasonable doubt that appellant knowingly caused or attempted to cause physical harm to Mr. Johnson. R.C. 2903.13(A). Appellee presented evidence at trial of three alleged assaults by appellant: 1) striking Mr. Johnson in the face at least once with a closed fist, 2) repeatedly striking Mr. Johnson's head with a police car rear door, and 3) striking Mr. Johnson in the back of the head with a closed fist. Appellant correctly states the record fails to show which of these allegations was the basis for the jury's decision.

{¶ 14} If the jury believed all of the evidence in the record, despite some contradictions, by all accounts September 6, 2015, was not a good day for Mr. Johnson. Mr. Johnson remembers either nothing or very little from the time the fight broke out inside the bar: "[I]t's kind of a blur from there * * * I mean it's just bits and pieces throughout the whole night." Mr. Johnson testified at trial:

Q: So you don't remember too much from that night?
A: No, not really. No.

{¶ 15} Mr. Johnson, however, testified he clearly recalled his nose being broken that night, but that he did not require immediate treatment:

Q: Was [your nose] broken before you went out in the back parking lot [of the bar]?
A: No, it was broken by Mr. Bolton.
Q: Okay. Any treatment or-that you had after that for the broken nose ?
A: No treatment, just X-rays, and they said that it was broken, and then I went to the hospital the day after because I couldn't walk.

{¶ 16} Mr. Johnson also testified he clearly recalled being intoxicated: "On a scale of 1 to 10, probably a 9. I was pretty intoxicated." According to the record he began drinking at his girlfriend's home with her father, Tom Skully, the evening of September 5, 2015, and continued drinking at another local bar and finally ended up at Rudy's Bar & Grill, where he spent more time drinking with Mr. Skully and other friends until about 2:00 a.m. The fight started inside the bar and then moved outside. The record reflects Mr. Johnson's arrest occurred during the next hour from the time Mr. Johnson was found fighting outside Rudy's Bar in Vermilion until he was finally subdued enough to receive medical treatment at Mercy Hospital in Lorain.

{¶ 17} The record also shows that before, between, and after the three alleged assaults by appellant, and during this same one-hour period, Mr. Johnson suffered numerous other physical incidents from others, including from bar patrons, bar staff, friends, police officers, hospital security, and himself. The additional physical incidents that occurred can be generally described as two punches to Mr. Johnson's face, five punches to his body, three pepper sprays to his face, 17 rough man-handlings of him, and Mr. Johnson's own kicking and head banging in the police car during each of his transportation segments. None of those incidents are the subject of this litigation.

{¶ 18} An essential element of the crime of assault is appellant acting knowingly against Mr. Johnson. "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. * * * When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." R.C. 2901.22(B).

{¶ 19} A police officer does not act knowingly if he successfully presents evidence of a "reasonable but mistaken belief as to the facts that prompted him to act." State v. White , 2013-Ohio-51, 988 N.E.2d 595, ¶ 121 (6th Dist.).

{¶ 20} Appellant asserted "justification" as an affirmative defense, claiming that his use of force on Mr. Johnson was justified in the exercise of his official duties as a police officer. An affirmative defense of justification is defined as a "defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence." R.C. 2901.05(D)(1)(B). "Justification" is "merely a genus label for any affirmative defense which functions to excuse admitted conduct that is otherwise unlawful." White at ¶ 137.

{¶ 21} Appellant must prove his affirmative defense of justification by a preponderance of evidence. R.C. 2901.05(A). "Preponderance of the evidence is defined as 'that measure of proof that convinces the judge or jury that the existence of the fact sought to be proved is more likely than its nonexistence.' " In re Z.G. , 6th Dist. Erie No. E-12-063, 2013-Ohio-2482, 2013 WL 3057228, ¶ 31. Appellant did not convince the jury.

{¶ 22} The record is replete with evidence of Mr. Johnson's ceaseless resistance to arrest by appellant and Officer David Jones, the second uniformed Vermilion police officer to arrive at the scene. Mr. Johnson's resistance cannot be excused unless there was "excessive or unnecessary force by an arresting officer." Columbus v. Fraley , 41 Ohio St.2d 173, 175, 324 N.E.2d 735 (1975), paragraph three of the syllabus ("In the absence of excessive or unnecessary force by an arresting officer, a private citizen may not use force to resist arrest by one he knows, or has good reason to believe, is an authorized police officer engaged in the performance of his duties, whether or not the arrest is illegal under the circumstances"). It is undisputed at all relevant times appellant was an authorized police officer engaged in the performance of his duties. The jury found appellant used excessive or unnecessary force on Mr. Johnson.

{¶ 23} "Force" is "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1). An arresting officer's use of force during the arrest of a person who is resisting that arrest is expected to involve "force" as defined by statute. White at ¶ 57. Moreover, at common law a law enforcement officer has a privilege to use reasonable force in the discharge of his official duties.

State v. White , 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 14, 17.

{¶ 24} A police officer's use of non-deadly force is reasonable "if the jury is merely persuaded that a reasonable officer in the same situation could have believed the same force was necessary." White , 2013-Ohio-51, 988 N.E.2d 595, at ¶ 60. Appellant did not persuade the jury.

{¶ 25} To determine the "objectively reasonable" police officer's use of force, there is no precise calculation; rather, the standard takes into account the totality of the circumstances confronting the police officer, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." White , 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, at ¶ 23.

{¶ 26} Without any reliance on "the 20/20 vision of hindsight" or armchair reflection, a fact finder must look only to what a reasonable police officer would have done in appellant's shoes at the scene, perceiving what appellant then perceived and acting within the limits of appellant's knowledge or information as it then existed. Id. ; White , 2013-Ohio-51, 988 N.E.2d 595, at ¶ 72-73. Those actions and perceptions in the moment can be mistaken and still be objectively reasonable. White , 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, at ¶ 60. During an arrest "police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham v. Connor , 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The police officer's underlying intent or motive is irrelevant in a reasonableness analysis. Id. Conclusory testimony disguised as expert opinion is inadmissible for the objectively reasonable determination. White , 2013-Ohio-51, 988 N.E.2d 595, at ¶ 76.

First Alleged Assault: Closed Fist Strike of Mr. Johnson's Face

{¶ 27} First we will review appellant's alleged closed fist strike of Mr. Johnson's face while Mr. Johnson was resisting handcuffing outside the bar in the parking lot. Appellant did not testify at trial, so to know his beliefs as to the facts and his perceptions of the incident is from other sources. The record contained a transcript of his testimony to the grand jury and his police report.

{¶ 28} After appellant secured the first handcuff on Mr. Johnson while Mr. Johnson was face down on the ground, appellant felt Mr. Johnson twist and grab with his free hand appellant's leg to bring him to the ground. Appellant believed Mr. Johnson's action was a threat to him and the bystanders, especially if Mr. Johnson got access to appellant's weapons. Mr. Johnson repeatedly ignored appellant's verbal commands. Appellant reacted to Mr. Johnson's leg grab by striking the only visible target to him at his angle looking down on Mr. Johnson. Appellant admitted to one strike to Mr. Johnson's face, but appellee alleged there were two strikes shown in the enhanced body camera video. Then Officer Jones arrived at the scene to assist appellant, and Officer Jones struck Mr. Johnson twice to the right side of his torso with a closed fist, which subdued Mr. Johnson long enough to get his other hand handcuffed. Appellant believed his closed fist strike of Mr. Johnson's face while Mr. Johnson was resisting handcuffing was within Vermilion Police Department's use of force policy.

{¶ 29} Officer Jones testified at the trial, and his police report is included in the trial record. He confirmed seeing Mr. Johnson grabbing appellant's leg. He admitted to delivering two closed fist strikes to Mr. Johnson's shoulder to force him to let go of appellant's leg: "[H]e had a hold of Sergeant Bolton's leg, so I thought that that [sic] would be a good spot to strike him." However, he did not feel he needed to also strike Mr. Johnson's face. "I just feel [sic] that I didn't need to hit him in the head at the time * * * it wasn't my leg-that wasn't being grabbed." Specifically, Officer Jones testified that in the conditions perceived by appellant, a strike to the face could be reasonable.

Q: So * * * the fact that it was dark, we had all these people, he was being pulled to the ground, the only place he could hit was the face, you would feel that was okay?
A: If that's how Sergeant Bolton felt, then yes.

{¶ 30} Finally, Officer Jones testified even if the threat of harm to appellant and others posed by Mr. Johnson was a mistake, he still believed Mr. Johnson was attempting to pull appellant down.

{¶ 31} Appellant's expert on police use of force, Gregory Ellifritz, testified appellant could not have faked or staged the strike to Mr. Johnson because appellant's body camera video confirmed two, separate verbal commands by appellant to Mr. Johnson to let go, first of his foot, and then of his leg. "If he was faking something, he would probably be consistent * * * but the fact that he changed from foot to leg * * * tells me that * * * the suspect was trying to get a better hold on him, and that makes me believe that it wasn't faked."

{¶ 32} Appellee's expert witness on police use of force, Samuel Faulkner, admitted that appellant's repeated verbal commands to Mr. Johnson to let go of his leg could reasonably mean that appellant believed someone was grabbing his leg and had not let go. However, in his opinion appellant either faked or staged the scuffle with Mr. Johnson in order to strike Mr. Johnson's face and fracture his nose without justification.

{¶ 33} Appellee also called as witness Christopher Hartung, the Vermilion Police Chief. Chief Hartung testified that appellant's police report did not quite "jive" with him, so he wanted a further review. In the course of that review, Chief Hartung sought to enhance appellant's body camera video to lighten it for better viewing. Although clearer "it was still pretty pixilated" in the enhanced version and Chief Hartung became primarily concerned about the other two alleged assaults on Mr. Johnson. For that reason he referred the investigation to the Erie County Sheriff's Department. Detective Sergeant Nicholas Kostopoulos of the Erie County Sheriff's office investigated the alleged assaults by appellant on Mr. Johnson.

{¶ 34} Sergeant Kostopoulos testified at trial appellant's body camera video had to be further artificially enhanced because it was "hard to * * * see anything in the original video, so I wanted to corroborate every * * * fact that was in the report as best we could with the video." Sergeant Kostopoulos confirmed the body camera audio indicated appellant yelled, "Let go of my foot. Let go of my leg I believe is-yes, correct." Sergeant Kostopoulos, like Chief Hartung, did not form a specific opinion about the first alleged assault because he was primarily concerned about the other two alleged assaults on Mr. Johnson.

{¶ 35} State Trooper Andrew Geer testified he saw appellant and Officer Jones reviewing the unenhanced body camera video footage at the police station later that morning: "From what I recall, they were watching the body camera, and I couldn't make it out, it was real shaky, too dark. It was-to me it looked distorted, I didn't-I couldn't really see it." Trooper Geer testified appellant stated that Mr. Johnson grabbed appellant's leg during arrest and appellant "punched him in the face." When Trooper Geer reacted that in his department that's considered lethal force and they can't do that, he said appellant replied, "He-he goes, yes, yes I can, I'm a self-defense instructor."

{¶ 36} Officer Sean Bailey of the Vermilion Police Department testified that he also saw appellant and Officer Jones reviewing the unenhanced body camera video at the police station later that morning: "I don't know if it was Sergeant Bolton, or Patrolman Jones, I don't remember per say which one, but one of the two were bragging about, you know, how-how beat up [Mr. Johnson] got, and he was bloody, you know."

{¶ 37} Given the jury's role to weigh the evidence supporting and rebutting appellant's perception of Mr. Johnson trying to bring appellant to the ground at the time appellant struck him in the face, a rational jury could reach its conclusion to convict appellant of assault without justification for striking Mr. Johnson in the face during arrest.

Second Alleged Assault: Car Door Strikes of Mr. Johnson's Head

{¶ 38} Next we review appellant's alleged closing Officer Jones' patrol car's rear door repeatedly on Mr. Johnson's head. This alleged assault occurred after appellant and Officer Jones were finally able to handcuff Mr. Johnson, and Mr. Johnson refused to walk to Officer Jones' police car. Mr. Johnson had become dead weight and forced appellant and Officer Jones to drag Mr. Johnson from where he was handcuffed to the police car.

{¶ 39} According to appellant's police report and grand jury testimony, once Mr. Johnson was dragged to the police car, he continued to actively resist arrest by refusing to get into the back seat of the police cruiser and, once inside with one door closed, refused to stay in the car. Appellant believed Mr. Johnson was trying to exit the police car by pushing off the opposite door, which was closed:

I walked around to the other side of the car and reached in pulling Johnson into the back seat of the cruiser by using a wrist lock. Ptl. Jones closed the door on his side of the car and Johnson then pushed off that door trying to get out on my side. He stuck his head and shoulders out of the vehicle and refused to sit up. I ordered him several times to get in the vehicle and attempted to close the door but he would not comply and kept trying to put his head in the way of me closing the door.

{¶ 40} Another description in the record of appellant's perspective of this incident came from appellant's grand jury testimony:

So when we get the cruiser door open, we go to put Johnson in the cruiser, he's refusing to comply, refused to get into the car, just will not cooperate with any of our commands. So now I go around to the other side of the car, I climb in, I grab him by his arms and pull him into the cruiser and at that time Officer Jones was able to shut the door. Once he did that, then * * * Johnson pushed off that door that was closed and started leaning out the other side. As I was trying to close it, I'm yelling at him to get his head out, get in the car, get his head out, as I'm trying to shut the door, which is striking him in the shoulder. * * * I did that I think two or three times, yelling at him, he wasn't complying * * *. The intention is [sic] giving him the verbal commands shutting the door hoping that he would pull himself into the car.

{¶ 41} Another incident description in the record came from Officer Jones' police report:

Sgt. Bolton and I then helped Johnson to his feet and he was ordered to walk to the cruiser. Johnson refused and kept dropping himself to the ground in an attempt to become "dead weight." Johnson was again helped to his feet and again he refused to walk. Johnson was then drug to the cruiser with his feet dragging the ground. Johnson was then ordered to sit in the cruiser to which he refused. He was given several verbal commands to do so and still refused to sit in [the] cruiser. Sgt. Bolton assisted Johnson in the back seat of the cruiser and the left rear cruiser door was closed. Johnson then attempted to exit the cruiser from the right rear door and Sgt. Bolton began ordering him back into the cruiser. Sgt. Bolton attempted to close the cruiser door several times and each time he did so, Johnson attempted to exit the cruiser. Sgt. Bolton then pushed Johnson into the cruiser by his body and pushed him towards the driver's side. Sgt. Bolton was then able to close the cruiser door. While in the cruiser Johnson continued to yell and began to spit on the partition and the seat. Johnson was kicking the cruiser's door panel and screaming.

{¶ 42} Officer Jones testified at trial he believed Mr. Johnson was trying to get out of the car on appellant's side:

Q: And how-how was [Johnson] put in the car?
A: Sergeant Bolton pulled him into the car from the rear passenger side.
Q: Okay. And then where was your attention drawn to?
A: The crowd.
Q: Okay. So did you hear Sergeant Bolton at any time say anything about getting in the car?
A: He did. He was ordering Mr. Johnson to-to get in the car.
* * *
Q: What is your thought process at that time [of appellant closing the opposite door] as far as what Johnson's doing?
A: That the subject's trying to exit the car from the other side.
Q: And what's that based upon?
A: My training and experience as a police officer.
* * *
Q: And when you were on the driver's side of the car attending to the crowd, did you happen to look back maybe once briefly to see the door closing?
A: I did.
Q: And did you see the door closing and Sergeant Bolton try to close it?
A: Yeah. Yeah.
Q: And was it your impression that he was pushing the door, or slamming it?
A: Just trying to close the door. I thought [Bolton] was just trying to close the door to get, you know, the door closed. I thought Johnson was trying to get out of the car.

{¶ 43} Officer Jones admitted he eventually viewed the enhanced body camera video. "After reviewing the [enhanced] video it appeared to me, the brief seconds that I watched the video, that Johnson was laying down flat, and was struck in the head with the door." This was a different impression from when he viewed the original body camera video.

{¶ 44} Mr. Faulkner repeatedly testified he had "no complaint" with appellant's going to the opposite side of the police cruiser, opening the door and pulling Mr. Johnson into the back seat. Mr. Faulkner, however, believed appellant then used the police car door as a deadly weapon on Mr. Johnson's head, even though he testified, "I don't believe I could see that with a clarity [in the enhanced video] that I * * * could say [the door closed on the head]. I don't see how it couldn't have made some contact with it, but I can't say I specifically saw that." Mr. Faulkner explained, "[W]e've got a person who has been punched, very possibly could concuss from this, sprayed with an aerosol agent, we know is intoxicated, later on we learn that he's hypoglycemic, and he's also taking medication for mental problems, and were expecting a person in that condition, who's handcuffed behind his back, to sit up." The record did not include any evidence that appellant knew of Mr. Johnson's medical conditions during the alleged assault.

{¶ 45} Mr. Faulkner testified he did not believe appellant's police report that Mr. Johnson pushed off the closed door or that Mr. Johnson tried to get out, even though he admitted the enhanced video did not show Mr. Johnson's feet or clearly show the door striking Mr. Johnson's head rather than his shoulder. He believed appellant wrote things in his report to "make the officer's responses in this case reasonable. That concerns me." Mr. Faulkner held this belief even if appellant, in the chaos of the situation and the dark lighting conditions, couldn't see the door was striking Mr. Johnson's head: "If he could see it, I don't know."

{¶ 46} Mr. Ellifritz testified why the body camera video, even in its enhanced format and slowed down, did not support the allegations against appellant.

Q. Were you able to see Sergeant Bolton grab Johnson by the neck, and pull him down into the door?
A: No, I did not see that. * * * No, it appeared like Sergeant Bolton was pulling him to get him into the cruiser. I didn't see him pull * * * his head outside. * * * I saw Sergeant Bolton pull him, that is the position that prisoners end up in when they're pulled, and their hands are behind their back * * * that's the standard tactic that a second officer would use to pull an officer through from the other side. * * * He was seated, but he started pushing with his legs on the other door of the cruiser, which changed his body position.
Q: Did you see that?
A: No, but his body action is consistent with that type of an activity.
Q: Did you see him push off the other door?
A: No, it's not visible in the camera.

{¶ 47} Mr. Ellifritz further testified another reason the allegations against appellant are not supported by the body camera video is because the audio and video do not match appellee's assault theory: "I don't believe [Mr. Johnson] was being struck in the head [by the door]. * * * I believe that he was probably being struck by another part as he was [pushing off the closed door]. I think the noise would have been significantly louder, and there would have been injuries present if he was struck in the head by the car door."

{¶ 48} Mr. Ellifritz further testified what appellant was trying to do was reasonable under the circumstances:

I didn't-from the video it did not appear to me like Sergeant Bolton was trying to strike him with the * * * cruiser door. It appeared to me like he was trying to use the cruiser door to push the guy inside. If he wanted to strike him, he wouldn't have been telling him constantly get in the car, get in the car, get in the car. It appeared to me like Sergeant Bolton was attempting to close the door as fast as possible to get that prisoner secured so that he could go help out the other officer [Holmes] who was dealing with a potentially armed suspect.

{¶ 49} The record shows that concurrently with Mr. Johnson's resisting arrest there was a radio call from Officer Holmes, the third police officer to arrive at the scene, who was trying to locate and apprehend another suspect, signaling to appellant he needed assistance. Officer Holmes testified at the trial that when he finally located the other suspect hiding in the bushes, "[I] announced myself; started ordering him to show me his hands, to come out of the bushes. At that time, he was non-compliant, he wouldn't come out initially. I believe I got on the radio and advised of that situation." The record shows at the point of Officer Holmes' radio call alerting appellant of his need for assistance, appellant stopped giving verbal commands to Mr. Johnson to get in the police car, went to the other side of the police car to pull Mr. Johnson in, Officer Jones then closed the first door, and appellant then proceeded to try to close the other door.

{¶ 50} Chief Hartung testified that under the dark lighting conditions reflected in appellant's original body camera video, appellant's actions had "[n]othing to take action on." Until the original video was artificially enhanced to make the scene "brighter," there was "nothing here to base what the [assault] allegations are." After viewing the enhanced body camera video Chief Hartung believed appellant did not take proper care "to make sure that the suspect's head is not in the way of the door, not vice versa. I mean, there's [sic] closing a car door on a suspect would not be-I can't think of any explanation or any rational reason for that."

{¶ 51} Sergeant Kostopoulos testified about his impressions from the enhanced body camera video: "[I]t's pretty dark in the back of the car, even when we lighten and change the contrast." As he described the enhanced video, "It shows the body camera distance close in, and then a reach for Jacob Johnson, pulls him down, then the door starts being closed on Jacob Johnson with commands [to] get in the car." Sergeant Kostopoulos concluded from what he saw in the enhanced video that appellant intentionally pulled Mr. Johnson down on the back seat so his head was positioned for door slamming even though appellant is heard on the video giving Mr. Johnson contrary verbal commands to get in the car.

{¶ 52} Given the jury's role to weigh the evidence supporting and rebutting appellant's perception of the situation with Mr. Johnson actively resisting arrest during his placement into the back seat of Officer Jones' police car, a rational jury could reach its conclusion to convict appellant of assault without justification for striking Mr. Johnson's head with the police car rear door during arrest.

Third Alleged Assault: Strike to Mr. Johnson's Head

{¶ 53} Next we will review appellant's alleged closed fist strike to the back of Mr. Johnson's head while in the back seat of Officer Jones' police car. This alleged assault occurred immediately after appellant allegedly assaulted Mr. Johnson's head with the police car rear door. According to appellant's police report, appellant believed Mr. Johnson was actively resisting arrest and trying to spit blood and mucous at him:

I continued to order [Johnson] to get [into] the vehicle and he replied with "f*** you b****." Using reasonable force I was able to lift Johnson up and place him fully inside the vehicle. While doing so I had my left hand behind Johnson's neck and my right hand on his shoulder. As I lifted him to a sitting position he turned and it appeared that he was about to spit at me. I then quickly pushed his head and turned his face away from me with my right hand. I was then able to close the door.

{¶ 54} According to appellant's grand jury testimony:

[Johnson] wasn't complying, so then I sat him up into a sitting position. During this he's yelling, cussing, blood and spit is flying everywhere. He turns his head, and to avoid myself getting spit at, I use open hand and pushed his head away from mine quickly, was able to back out and close the door. * * * Yes, I used an open hand to turn his head away from me so I didn't get blood and spit on me.

{¶ 55} Officer Jones testified at trial from his position outside the car he did not see appellant strike Mr. Johnson in the back seat, but his police report confirmed Mr. Johnson's spitting and belligerent conduct after appellant sat Mr. Johnson up in the back seat and closed the car door: "While in the cruiser Johnson continued to yell and began to spit on the partition and the seat. Johnson was kicking the cruiser's door panel and screaming."

{¶ 56} At trial Chief Hartung testified, "I think [Bolton's] * * * understanding was that he felt that the individual was turning and trying to spit on Sergeant Bolton so Sergeant Bolton's response was to keep him from turning his head to do so." However, Chief Hartung believed the enhanced video showed appellant using a closed fist to the side of Mr. Johnson's face rather than an open palm. Even though both responses would be justified under his department's use of force policy based on the officer's perception, Chief Hartung was suspicious of the inconsistency between what he believed the enhanced body camera video showed and what appellant wrote in his report.

{¶ 57} Sergeant Kostopoulos believed the enhanced video did not show Mr. Johnson turning his head towards appellant, so he concluded appellant was not justified striking Mr. Johnson's head.

{¶ 58} Even with the enhanced body camera video slowed way down, appellant's expert, Mr. Ellifritz, testified he saw appellant only use an open hand to push Mr. Johnson's face away:

Q: [Enhanced video was played.] You didn't see [Bolton] hit [Johnson] with a closed fist?
A: I did not see him hit him with a closed fist. * * * [Enhanced video was replayed and slowed down.] I saw a fist and then by the time that struck I saw fingers, which tells me that it's an open hand. * * * [Enhanced video was replayed again and further slowed down.] There's a fist, and I saw fingers before I saw the initial contact.

{¶ 59} Although appellee's expert, Mr. Faulkner, believed the enhanced video showed appellant striking Mr. Johnson with a closed fist with no danger of Mr. Johnson's spit of blood and mucous, he acknowledged that appellant's perception could have been that Mr. Johnson posed a threat: "[Bolton] could certainly perceive [Mr. Johnson's spit of blood and mucous] was a threat." Mr. Faulkner echoed his earlier concern that appellant crafted his police report to look reasonable: the discrepancy between appellant's police report stating he pushed Mr. Johnson's face away where Mr. Faulkner believed appellant punched Mr. Johnson. In either event, Mr. Faulkner did not believe appellant was justified to touch Mr. Johnson's head. Rather, even if appellant "perceived [Mr. Johnson's spit of blood and mucous] was a threat, he can move out of the way."

{¶ 60} Given the jury's role to weigh the evidence supporting and rebutting appellant's perception of the situation with Mr. Johnson trying to spit blood and mucous at him while in the back seat of Officer Jones' police car, a rational jury could reach its conclusion to convict appellant of assault without justification for striking Mr. Johnson's head with either an open or closed fist during arrest.

{¶ 61} We reviewed the entire record in this case and do not find the jury lost its way or created a manifest miscarriage of justice in determining appellant's guilt for assault beyond a reasonable doubt. We will not disturb the jury's findings.

{¶ 62} Appellant's sole assignment of error is not well-taken.

{¶ 63} On consideration whereof, we find that substantial justice has been done in this matter. The judgment of the Erie County Court of Common Pleas is affirmed. The bond and stay of execution of sentence entered by this court on December 29, 2016, is hereby withdrawn. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Christine E. Mayle, P.J.

CONCUR.


source: Caselaw Access Project

author: Wise, John, P.J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Mathew Nicolas MIKU, Defendant-Appellant
    No. 2017 CA 00057
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: April 20, 2018
    JOHN D. FERRERO, PROSECUTING ATTORNEY, RONALD MARK CALDWELL, ASSISTANT PROSECUTOR, 110 Central Plaza South, Suite 510, Canton, Ohio 44702, for Plaintiff-Appellee.
    AARON KOVALCHIK, 116 Cleveland Avenue, NW, 808 Courtyard Centre, Canton, Ohio 44702, for Defendant-Appellant.
    JUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, Jr., J.
   Wise, John, P.J.

{¶ 1} Defendant-Appellant Mathew Nicolas Miku appeals his conviction for murder and child endangering in the Court of Common Pleas, Stark County. Plaintiff-Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

{¶ 2} On the late morning of March 4, 2016, paramedics from the Canton Fire Department were dispatched to a residence on Dewalt Ave. NW in response to a report of an adult woman needing medical assistance. Appellant lived there with Hailey Miku, his young daughter, and his girlfriend Jessica Bender (who is not the child's mother). The paramedics instead discovered the body of three-year-old Hailey on a mattress in the living room. Paramedic John Huff later testified that appellant appeared "frantic" at the scene. Appellant then stated that Hailey had tripped over a cat and had fallen down a flight of carpeted stairs the previous week. Trial Tr. at 254, 256. Appellant told Huff that he had brought Hailey downstairs after discovering her in an unresponsive state. Id. Sergeant Robert Smith and Officer Dave Wolgamott of the Canton Police Department were also dispatched to the scene. According to Sgt. Smith, when he made contact with appellant, his response was: "I'm going to jail, ain't I?" Tr. at 267.

{¶ 3} Harry Campbell, the chief investigator for the Stark County Coroner, also came to the scene. He observed that rigor mortis had set in, and he observed inter alia "numerous injuries * * * across [Hailey's] scalp, the forehead, the bridge of the nose, and the right cheek." Tr. at 293. Campbell also noted additional injuries, including abrasions and bruises, about the girl's head and body.

{¶ 4} Appellant was interviewed by Detective Joseph Mongold at Canton Police headquarters, after signing a written waiver of his Miranda rights. Tr. at 455. Appellant told him that the girl's mother, Justina Longwell, had asked him around Thanksgiving of 2015 to watch Hailey for a few days, but that she thereafter avoided resuming physical custody. Tr. at 460-461. Appellant initially maintained his claim that Hailey had fallen down the stairs. As Mongold continued the questioning, he pointed out that the girl's numerous injuries were not consistent with a single fall down the carpeted stairs. Appellant at some point in the process added that she had also fallen off the toilet. Appellant further suggested that the girl may have had a reaction to Tylenol or Ibuprofen. Tr. at 464. At some point, appellant began to concede that he had "severe anger issues," that he usually took his frustration out on Hailey, and that he had a hard time controlling himself when he acted violently. Tr. at 465. He then admitted that he had hit her in the face with an open hand, causing her ear to bleed, and that he had beat her with a curtain rod. Tr. at 467. Ultimately, appellant confessed to the detective that he had gone too far and killed her. Tr. at 468. When asked about Jessica Bender's role in the abuse of Hailey, appellant stated Bender "didn't have a hard bone in her body and wouldn't hurt a fly." Id. Appellant also asked Det. Mongold to tell some of the neighbors that he knew what he had done was wrong. Tr. at 470.

{¶ 5} On July 26, 2016, the Stark County Grand Jury indicted appellant on one count of murder ( R.C. 2903.02(B) ), specifically for knowingly causing the death of another as a proximate result of committing the second-degree felony of child endangering. Appellant was also indicted on one count of child endangering ( R.C. 2919.22(B)(1) and (E)(2)(d) ), specifically for recklessly abusing a child that resulted in serious physical harm to the child, or (under R.C. 2919.22(B)(2) and (E)(3) ), for recklessly torturing or cruelly abusing the child that resulted in serious physical harm to the child. The State's theory of the case was that appellant beat the child over a three-month period without seeking medical attention for her, resulting in her death.

{¶ 6} Appellant subsequently pled not guilty to the above charges. On November 21, 2016, appellant filed a motion to suppress the statements he made to Detective Mongold during the recorded interview at the Canton Police Department. He argued in his motion that his waiver of his constitutional rights and agreement to speak was induced by improper promises made by the detective. Following a hearing on December 1, 2016, the trial court overruled the motion to suppress.

{¶ 7} The case proceeded to a trial by jury commencing on February 6, 2017. During the trial, Dr. Renee Robinson, forensic pathologist at the Stark County Coroner's Office, testified that she performed the autopsy of Hailey Miku, as further detailed infra . Tr. at 514-515. Dr. Robinson testified that she determined that homicide was the manner of death concerning Hailey. Tr. at 559. However, upon cross-examination, Dr. Robinson could not point to a specific single injury that caused the death of Hailey. Tr. at 566.

{¶ 8} Later during the trial proceedings, appellant moved the court to instruct the jury on the lesser included offense of involuntary manslaughter. The trial court overruled the motion.

{¶ 9} The jury ultimately found appellant guilty of the charged offenses, and the court sentenced him to an aggregate prison term of 23 years-to-life in prison (15 years-to-life for murder and a consecutive eight-year prison term for child endangering).

{¶ 10} On April 3, 2017, appellant filed a notice of appeal. He herein raises the following seven assignments of Error:

{¶ 11} "I. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELANT'S [SIC] MOTON [SIC] TO SUPPRESS.

{¶ 12} "II. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶ 13} "III. THE TRIAL COURT ERRED IN ADMITTING PHOTOS WHICH WERE INFLAMMATORY AND HIGHLY PREJUDICIAL.

{¶ 14} "IV. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY OF PRIOR BAD ACTS.

{¶ 15} "V. THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON INVOLUNTARY MANSLAUGHTER.

{¶ 16} "VI. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS TRIAL COUNSEL PROVIDED INEFFECTIVE ASSITANCE [SIC].

{¶ 17} "VII. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE APPELLANT'S CONVICTIONS AS ALLIED OFFENSES."

I.

{¶ 18} In his First Assignment of Error, appellant contends the trial court erred in denying his motion to suppress the statements he made to Detective Mongold concerning his conduct toward the victim, Hailey. We disagree.

{¶ 19} There are three methods of challenging on appeal a trial court's ruling on a motion to suppress. First, an appellant may challenge the trial court's finding of fact. Second, an appellant may argue the trial court failed to apply the appropriate test or correct law to the findings of fact. Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final issue raised in the motion to suppress. When reviewing this third type of claim, an appellate court must independently determine, without deference to the trial court's conclusion, whether the facts meet the appropriate legal standard in the given case. See State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583 ; State v. Williams (1993), 86 Ohio App.3d 37, 619 N.E.2d 1141 ; State v. Curry (1994), 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 ; State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906 ; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. The United States Supreme Court has held that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. See Ornelas v. United States (1996), 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911.

{¶ 20} The gist of appellant's suppression argument is that Detective Mongold, following appellant's waiver of rights pursuant to Miranda , infra , improperly induced him to make incriminating statements by allegedly implying appellant would receive a lesser jail sentence and promising appellant that he could see his girlfriend, Jessica Bender, after the interview.

{¶ 21} A waiver of the Fifth Amendment right not to incriminate oneself must be made voluntarily, knowingly and intelligently. State v. Abdi , 4th Dist. Athens No. 09CA35, 2011-Ohio-3550, 2011 WL 2792342, ¶ 55, citing Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. A suspect's decision to waive his or her Fifth Amendment privilege is made voluntarily absent evidence that his or her will was overborne and his or her capacity for self-determination was critically impaired because of coercive police conduct. State v. Collins, 5th Dist. Richland No. 2003-CA-0073, 2005-Ohio-1642, 2005 WL 774010, ¶ 141, citing Colorado v. Spring (1987), 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed.2d 954. A "totality of the circumstances test" is applied to this question. See, e.g., State v. Burgett, 3rd Dist. Marion No. 9-09-14, 2009-Ohio-5278, 2009 WL 3165587, ¶ 39.

{¶ 22} During the suppression hearing, Detective Mongold testified that appellant asked multiple times if he could see Jessica Bender. Supp. Tr. at 22, 33-35. Mongold stated he told appellant that he could make it possible for him to see Bender after the interview. Id. Mongold testified on cross examination that appellant asked what kind of jail sentence he was looking at, to which the detective responded that it depended upon how truthful he was to law enforcement. Supp. Tr. at 37. Mongold also testified upon cross-examination that he told appellant he could see Bender if he was honest with him. Supp. Tr. at 38.

{¶ 23} As appellant notes, the Second District Court of Appeals, in State v. Arrington (1984), 14 Ohio App.3d 111, 470 N.E.2d 211, held as follows: "Where an accused's decision to speak was motivated by police officers' statements constituting 'direct or indirect promises' of leniency or benefit and other representations regarding the possibility of probation which were misstatements of the law, his incriminating statements, not being freely self-determined, were improperly induced, involuntary and inadmissible as a matter of law." Id. at paragraph 2 of the syllabus. Nonetheless, general assurances that a defendant's cooperation will be considered or that a confession will be helpful do not invalidate a confession. See State v. Scholl , 10th Dist. Franklin No. 12AP-309, 2012-Ohio-6233, 2012 WL 6738536, ¶ 15. We also note that under R.C. 2929.12(D) and (E), one of the factors for consideration of the likelihood of recidivism is whether or not an offender shows "genuine remorse for the offense." Upon review, we find Detective Mongold's unspecific statement that appellant's sentence "depends on how honest you are with us" did not constitute a misstatement of the law rendering appellant's statements involuntary and inadmissible under Arrington .

{¶ 24} In regard to the detective's assurances that appellant could talk to his girlfriend, Jessica, we find appellant divorces this question from its context. The record indicates that after appellant presented his initial exculpatory version of events, Det. Mongold confronted him with information that had been obtained from other sources, including Jessica. Supp. Tr. at 44. Appellant then persisted in his request to see and talk with her. Likely seeking to prevent appellant from finding out what Jessica had reported and thereby allowing appellant the opportunity to line up his story with her report, Mongold understandably replied that he would see about allowing appellant to talk with Jessica after the interrogation was complete, and not before. We are unpersuaded that the detective's actions constituted a misrepresentation of the law or other coercive technique utilized to improperly induce a confession by appellant.

{¶ 25} Accordingly, we hold the trial court did not err in denying appellant's motion to suppress.

{¶ 26} Appellant's First Assignment of Error is overruled.

II.

{¶ 27} In his Second Assignment of Error, appellant maintains his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. We disagree.

Sufficiency of the Evidence

{¶ 28} In reviewing a defendant's claim of insufficient evidence, "[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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

{¶ 29} Appellant was convicted of murder under R.C. 2903.02(B), which states: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code."

{¶ 30} Appellant was also convicted of child endangering under R.C. 2919.22(B)(1) and/or (B)(2), which read in toto as follows:

(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child[.]

{¶ 31} In the case sub judice, one of the State's key witnesses was Dr. Renee Robinson, a forensic pathologist with the Stark County Coroner's Office, who conducted the autopsy of Hailey's body. Among other things, she noted that Hailey weighed 27.2 pounds, which, according to her medical records, was down from her October 2015 weight of just under 28.4 pounds. Tr. at 523. According to Dr. Robinson, Hailey was in just the 5th percentile for weight and body mass index for a child of her age. Tr. at 524. At the time of Hailey's death, there were no contents inside the stomach, and a toxicological screen of her blood and liver did not show the presence of Tylenol or Ibuprofen, in contradiction to what appellant initially told Det. Mongold. Tr. at 521, 557. There were numerous abrasions to the girl's face, indicating recent blunt trauma. One of her eyes was swollen, and there was "evidence that this eye [had] been bruised previously." Tr. at 526. Dr. Robinson also noted a tear in the skin behind her one ear, which the presence of a significant amount of dead skin on that part of the scalp. Hailey's hair was missing from his area, and some of her other hair easily came out in Dr. Robinson's hands during the autopsy. There was also some scabbing on her scalp, and skin had been taken off areas of the girl's face. Dr. Robinson concluded that none of these injuries were caused by a fall, but were instead the result of blunt trauma. Tr. at 520-533, 548.

{¶ 32} Dr. Robinson also noted green discoloration around Hailey's abdomen, and a collection of fluid on her hip bone. This indicated to Dr. Robinson that something was "not right" with Hailey's environment or "internal body chemistry" since these are signs usually seen when a dead body has been decomposing. Tr. at 535. On her body, in general, there were "multiple medical bruises" and "multiple areas of abraded skin." Id. Hailey's torso also had perimortem abrasions, which is indicative that these injuries were caused while she was dying. There was also an abrasion to the girl's labia. After examining Hailey's front side, Dr. Robinson noted bruising all along the girl's back area. Along with bruising, scabbing, and healing lesions on her buttocks, there were bruises up and down Hailey's spine, corresponding with the protrusions of her spine. According to Dr. Robinson, such injuries are often seen who have been bed-ridden for some time, producing "bed sores," which could also have been caused by standing against a wall for a long time. Tr. At 542. Dr. Robinson also testified that although most children do not lose any teeth until the age of six, when permanent teeth start coming in, Hailey at age three was already missing teeth and one front tooth was merely sitting in its socket. Dr. Robinson also noted bruising and contusions on the girl's legs, which again, were not the results of a fall according to the doctor, but were instead the result of blunt trauma. Tr. at 534-546.

{¶ 33} Dr. Robinson also opined that the foam found around Hailey's mouth at the time of her demise would indicate a "slower death." Blood and other bodily fluids were leaking inside Hailey's body, collecting in her lungs and then being expelled through her mouth. An examination of Hailey's internal organs showed the presence of "bacterial overgrowth" in her heart, brain, eyes, and kidneys, related to bacteria in the girl's bloodstream. These organs also indicated longstanding inflammation. In addition, the small intestine showed evidence of ongoing bleeding, which results when the body's clotting agents are consumed in dealing with bleeding and inflammation in other parts of the body. In addition, the presence of bone marrow emboli in Hailey's lungs indicated the girl's bones had suffered trauma. Based on the status of her internal organs, Hailey would have needed hospitalization. Tr. at 546-557.

{¶ 34} Dr. Robinson's conclusion was that Hailey's manner of death was a homicide. As to cause of death, the doctor testified:

* * * My final anatomic diagnosis reads that she sustained inflicted trauma of varying ages of her head, face and scalp, of her torso, which is your trunk, and the extremities. There was evidence of neglect, both of general care and of medical care. There was sequelae of trauma and neglect which is things that can happen as a result of the trauma and neglect, and everything I talked about, the chronic inflammation and the things that I found in the organs are sequelae of that. With the final diagnosis coming under the heading of all these things, being the result of combined effects of acute and chronic inflicted trauma and neglect. Acute means short-term, chronic means long-term. * * *.
Tr. at 558-559.

{¶ 35} The State also called Jessica Bender, who lived with appellant during the pertinent times in this case. She recalled numerous instances of witnessing appellant hitting and slapping Hailey, hearing "thud" sounds from other rooms, observing the ear and scalp wound on the girl, and instances of appellant locking Hailey in her room for as long as a day and a half. Tr. at 388-415. Hailey was "always hungry" and would quickly drink any beverages Jessica gave her. Tr. at 394. Jessica said she last saw Hailey alive the night before she died. The next morning, appellant came downstairs about 8:30 AM, telling her that he had given the girl some Tylenol and that she wanted to go back to bed. According to Jessica, appellant left the house to get some cigarettes at about 9:00 or 10:00 AM, and after returning, he went upstairs and found her lifeless body at about 11:00 AM. After screaming out "she won't wake up," appellant called 911 and brought Hailey down to the mattress in the living room. Tr. at 419.

{¶ 36} As noted in our recitation of facts, appellant made significant confessions to Det. Mongold and lesser incriminating statements to some of the responding Canton officers. Appellant himself further exonerated Jessica from any wrongdoing in his statements. A defendant's confession may be construed as direct evidence of his or her guilt. See State v. Corson , 4th Dist. Pickaway No. 15CA4, 2015-Ohio-5332, 2015 WL 9305491, ¶ 30, citing State v. Watts, 1st Dist. Hamilton No. C-810091, 1981 WL 10176, fn. 1.

{¶ 37} Appellant's chief contention for purposes of his sufficiency of the evidence claim appears to be that DNA evidence was not presented linking him to Hailey's injuries. However, upon review of the record, we find sufficient direct and circumstantial evidence existed for reasonable fact finders to conclude beyond a reasonable doubt that appellant engaged in child endangering and caused the resulting death of Hailey as charged. We thus hold said convictions were supported by the sufficiency of the evidence.

Manifest Weight of the Evidence

{¶ 38} In regard to appellant's manifest weight challenge to his convictions, our standard of review is stated as follows: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175, 485 N.E.2d 717.

{¶ 39} Appellant's focus is on the credibility of Jessica Bender. He urges that she made "multiple statements" to law enforcement officials, and notes that she was alone in the home with the child for a time on the morning of her death and that she was concerned about maintaining custody of her own children once the investigation began. Appellant also maintains that his explanation to police that the girl fell down the stairs should have created reasonable doubt for the jurors. However, bearing in mind the extent and varying nature of the child's multiple indicators of abuse, upon review of the record under the standard of Martin, we find the jury did not clearly lose its way and create a manifest miscarriage of justice requiring that appellant's convictions be reversed and a new trial ordered. Appellant's murder and child endangering convictions were not against the manifest weight of the evidence.

{¶ 40} Appellant's Second Assignment of Error is therefore overruled.

III.

{¶ 41} In his Third Assignment of Error, appellant argues the trial court erred in allowing into evidence certain autopsy photographs. We disagree.

{¶ 42} Under Evidence Rules 403 and 611(A), the admission of photographs is left to the sound discretion of the trial court. State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710. See also State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768. Under Evidence Rule 403(A), the probative value of the evidence must be weighed against the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. Evid.R. 611(A) further provides, in relevant part, the trial court "shall exercise reasonable control over the mode and order of ... presenting evidence so as ... to make the ... presentation effective for the ascertainment of the truth" and to "avoid needless consumption of time." "Although a photograph may be rendered inadmissible by its inflammatory nature, the mere fact that it is gruesome or horrendous is not sufficient to render it inadmissible if the trial court, in the exercise of its discretion, feels that it would prove useful to the jury." State v. Woodards (1966), 6 Ohio St.2d 14, 25, 215 N.E.2d 568. "The real question is whether the probative value of such photographs is outweighed by the danger of prejudice to the defendant." Woodards at 25, 215 N.E.2d 568.

{¶ 43} We note appellant failed to object to the introduction of the autopsy photographs in question. Error not raised in the trial court must be plain error in order to reverse. State v. Johnson, 5th Dist. Richland No. 98-CA-42, 1998 WL 818026, citing State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804. Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. Id. Plain error does not exist unless but for the error, the outcome of the trial would clearly have been otherwise. State v. Nicholas (1993), 66 Ohio St.3d 431, 613 N.E.2d 225.

{¶ 44} In the case sub judice , the trial court admitted sixteen autopsy photographs, twelve of which were of the child victim, Hailey. The State in this instance presented the case that Hailey died as a result of trauma over a three-month period, exacerbated by appellant's repeated failure to obtain even basic medical treatment for the child in the midst of his horrific perpetuation of child abuse. We therefore are unpersuaded upon review that the trial court committed plain error or abused its discretion in admitting the autopsy photographs at issue.

{¶ 45} Appellant's Third Assignment of Error is overruled.

IV.

{¶ 46} In his Fourth Assignment of Error, appellant contends the trial court erred in admitting certain testimony from Jessica Bender regarding his prior acts of violence toward Jessica and his anger management issues. We disagree.

{¶ 47} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. As a general rule, all relevant evidence is admissible. Evid.R. 402 ; cf. Evid.R. 802. Our task is to look at the totality of the circumstances in the case sub judice, and determine whether the trial court acted unreasonably, arbitrarily or unconscionably in allowing or excluding the disputed evidence. State v. Oman, 5th Dist. Stark No. 1999CA00027, 2000 WL 222190. However, we again note that appellant, except concerning a question about the care of his dog, did not object to the testimony in question. Error not raised in the trial court must be plain error in order to reverse. State v. Johnson, supra. In State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452, the Ohio Supreme Court reiterated that "* * * the plain error rule is to be applied with utmost caution and invoked only under exceptional circumstances, in order to prevent a manifest miscarriage of justice." Id. at 227, 448 N.E.2d 452.

{¶ 48} Evid.R. 404(A) provides that evidence of a person's character is not admissible to prove the person acted in conformity with that character. Evid.R. 404(B) sets forth an exception to the general rule against admitting evidence of a person's other bad acts. The Rule states as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. * * *"

{¶ 49} "Other acts" evidence is admissible only if there is substantial proof that the alleged other acts were committed by the defendant and such evidence tends to show one of the matters enumerated in Evid.R. 404(B). State v. Wagner, 5th Dist. Licking 03 CA 82, 2004-Ohio-3941, 2004 WL 1672200, ¶ 43, citing State v. Echols (1998), 128 Ohio App.3d 677, 692, 716 N.E.2d 728. However, even if disputed testimony was erroneously admitted at trial, such evidence may be found merely cumulative and not prejudicial where there is other evidence establishing a defendant's identity as the perpetrator of abuse. See State v. Young , 2nd Dist. Montgomery No. 19466, 2003-Ohio-4706, 2003 WL 22060780, ¶ 46. In this instance, as the State aptly points out in its response, appellant admitted in his statements to police that he suffered from anger management issues, that he took out his frustrations on Hailey, and that he often could not stop himself when he beat her. This constituted independent evidence upon which the jury could base its determinations.

{¶ 50} We therefore hold the trial court's decision allowing the disputed testimony by Jessica in regard to Evid.R. 404(B) did not constitute plain error or an abuse of discretion warranting reversal.

{¶ 51} Accordingly, appellant's Fourth Assignment of Error is overruled.

V.

{¶ 52} In his Fifth Assignment of Error, appellant contends the trial court erred by not instructing the jury, as he requested, on the lesser offense of involuntary manslaughter. We disagree.

{¶ 53} When reviewing a trial court's jury instructions, the proper standard of review for an appellate court is whether the trial court's refusal to give a requested jury instruction constituted an abuse of discretion under the facts and circumstances of the case. State v. Klusty, 5th Dist. Delaware No. 14 CAA 07 0040, 2015-Ohio-2843, 2015 WL 4275545, ¶ 25. Because the failure to properly instruct the jury is not in most instances structural error, the harmless-error rule of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, applies to a failure to properly instruct the jury, for it does not necessarily render a trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. State v. Bleigh, 5th Dist. Delaware No. 09-CAA-03-0031, 2010-Ohio-1182, 2010 WL 1076253, ¶ 119, citing Neder v. United States (1999), 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35.

{¶ 54} Even though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense. State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus.

{¶ 55} Appellant herein requested a jury instruction on involuntary manslaughter under R.C. 2903.04(A), which is causing the death of another "as a proximate result of committing or attempting to commit a felony." Appellant urges that it was "possible" for the jury to have acquitted him of murder and convicted him of involuntary manslaughter. Appellant's Brief at 21. However, the Ohio Supreme Court has cautioned: "To require an instruction to be given to the jury every time 'some evidence,' however minute, is presented going to a lesser included (or inferior-degree) offense would mean that no trial judge could ever refuse to give an instruction on a lesser included (or inferior-degree) offense. * * * The jury would be unduly confused if it had to consider the option of guilty on a lesser included (or inferior-degree) offense when it could not reasonably return such a verdict." State v. Shane (1992), 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272, 275 (parenthetical text in original).

{¶ 56} In this instance, the only child endangering charges that fit the distressing facts about Hailey's treatment by appellant were the two alternative versions charged in the indictment, both of which were second-degree felonies and the predicate offenses for murder under R.C. 2903.02(B). The evidence heard by the jury showed that Hailey died a horrible death as a result of appellant's repeated beatings and abuse, causing internal injuries that went untreated. The evidence simply would not support a lesser charge of child endangering and an acquittal of murder as charged. Upon review of the record, we are unpersuaded that the trial court's refusal to give an involuntary manslaughter instruction at the request of defense counsel was unreasonable, arbitrary, or unconscionable.

{¶ 57} Accordingly, appellant's Fifth Assignment of Error is overruled.

VI.

{¶ 58} In his Sixth Assignment of Error, appellant contends he was deprived of constitutional right to the effective assistance of trial counsel. We disagree.

{¶ 59} Our standard of review for ineffective assistance claims is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel's assistance was ineffective; i.e., whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his or her essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable probability that but for counsel's unprofessional error, the outcome of the trial would have been different. Id. However, trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court and the Ohio Supreme Court have held that a reviewing 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. Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052.

{¶ 60} In addressing this claim, we also remain mindful that "[a] defendant is entitled to a fair trial but not a perfect one." See State v. Bleigh, 5th Dist. Delaware No. 09-CAA-03-0031, 2010-Ohio-1182, 2010 WL 1076253, ¶ 133, quoting Bruton v. United States (1968), 391 U.S. 123, 135-136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (internal quotations omitted).

Claim of Ineffective Assistance re: Lack of Inquiry into Substance Use

{¶ 61} Appellant first argues his trial counsel was ineffective in failing to inquire or present evidence regarding his alleged use of alcohol and/or drugs, which may have impacted the trial court's analysis of the voluntariness of his statements to law enforcement concerning Hailey's death. However, our review on appeal is limited to those materials in the record that were before the trial court. See , e.g ., State v. DeMastry, 155 Ohio App.3d 110, 119-120, 799 N.E.2d 229, 2003-Ohio-5588, citing State v. Ishmail (1978), 54 Ohio St.2d 402, 377 N.E.2d 500. In this instance, we find appellant's argument relies on information dehors the record, and invites unwarranted speculation on our part in the present direct appeal. See , e.g. , State v. Fornshell , 5th Dist. Fairfield No. 10 CA 48, 2011-Ohio-3560, 2011 WL 2847508, ¶ 18.

Claim of Ineffective Assistance re: Failure to Object to Victim Photographs

{¶ 62} Appellant next challenges his trial counsel's decision not to attempt to block autopsy photographs of the victim (see Assignment of Error III, supra ). However, in light of our previous analysis and determinations, even if defense counsel had objected, we are unpersuaded that the danger of undue prejudice caused by admission of the photographs would have substantially outweighed their probative value.

Claim of Ineffective Assistance re: Failure to Challenge Prior "Bad Acts" Evidence

{¶ 63} Appellant lastly challenges his trial counsel's failure to challenge, via a motion in limine and/or objecting during trial, evidence regarding appellant's prior failure to take his mental health medications, his lack of proper care of his dog, and his past abusive treatment his girlfriend, Jessica Bender.

{¶ 64} Evid.R. 404(B) states as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. * * *."

{¶ 65} We first note it is well-established that "[c]ompetent counsel may reasonably hesitate to object [to errors] in the jury's presence because objections may be considered bothersome by the jury and may tend to interrupt the flow of a trial." State v. Rogers, 9th Dist. Summit No. 19176, 1999 WL 239100, citing State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339 (internal quotations omitted).

{¶ 66} Upon review, given the extensive evidence of the injuries to the victim and the abuse and neglect she suffered, assuming trial counsel's decision not to object in this regard fell below an objective standard of reasonable representation, we are unpersuaded that appellant was prejudiced thereby.

Conclusion

{¶ 67} Having considered the foregoing claims, we hold appellant was not deprived of the effective assistance of trial counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 and § 16 of the Ohio Constitution.

{¶ 68} Appellant's Sixth Assignment of Error is overruled.

VII.

{¶ 69} In his Seventh Assignment of Error, appellant argues, based on a theory of allied offenses of similar import, that the trial court erred in not merging his sentences for murder and child endangering. We disagree.

{¶ 70} R.C. 2941.25 protects a criminal defendant's rights under the Double Jeopardy Clauses of the United States and Ohio Constitutions. See State v. Jackson, 2nd Dist. Montgomery No. 24430, 2012-Ohio-2335, 2012 WL 1900373, ¶ 133, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 45. Appellate review of an allied offense question is de novo . State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.

{¶ 71} R.C. 2941.25 states 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.

{¶ 72} Under the Ohio Supreme Court's decision in State v. Earley, 145 Ohio St.3d 281, 285, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11, we now apply a three-part test under R.C. 2941.25 to determine whether a defendant can be convicted of multiple offenses: "(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered." Id. at ¶ 12, citing State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. We also note in Ruff, the Court had further developed the analytical framework for courts to apply regarding the concept of "import," holding in part as follows: "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." Ruff, at paragraph two of the syllabus.

{¶ 73} Appellant herein was convicted of murder under R.C. 2903.02(B), which states: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code."

{¶ 74} Appellant was also convicted of child endangering under R.C. 2919.22(B)(1) and/or (B)(2), which read in toto as follows:

(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child[.]

{¶ 75} Appellant directs us to State v. Henderson , 6th Dist. Wood No. WD-16-012, 2017-Ohio-2900, 2017 WL 2255452, which is essentially on point with the issue before us, although it appears to involve a much shorter timeframe of child abuse. The Sixth District Court of Appeals therein held:

Given the fact that the endangering children count was the predicate offense for appellant's murder conviction, we agree with appellant that the trial court erred in failing to merge the two offenses at sentencing. Indeed, the murder count was predicated upon the same conduct that gave rise to the endangering children conviction, appellant's abuse of [the child victim] that resulted in serious physical harm and, eventually, death. The offenses were of similar import, and appellant committed the offenses with one act and one animus.

{¶ 76} Id. at ¶ 36.

{¶ 77} However, our reading of the Ohio Supreme Court's rationale in Earley , supra , leads us to a different conclusion than that of Henderson .

{¶ 78} In Earley , the Court considered whether a trial court could impose cumulative sentences for both aggravated vehicular assault ( R.C. 2903.08(A)(1)(a) ) and operating a motor vehicle while under the influence of alcohol or drugs ("OVI") ( R.C. 4511.19(A)(1)(a) ) when the OVI was the predicate conduct for the aggravated vehicular assault. In determining the offenses were not required to merge, the Court first noted that by criminalizing aggravated vehicular assault, the General Assembly had "emphasized the necessity of a strong punishment for and deterrent against individuals causing serious physical harm while driving under the influence." Id. at ¶ 15. In lieu of focusing on a "separate animus" analysis, the Court emphasized that aggravated vehicular assault "has a different import and significance" than the offense of driving under the influence, because "aggravated vehicular assault necessarily involves causing serious physical harm to another person." Id. On the other hand, a misdemeanor OVI offender commits his or her offense "regardless of any subsequent consequences that occur due to the impaired driver's actions." Id. The Court thus concluded: "There is a legitimate justification for criminalizing each of these offenses separately, and R.C. 2941.25 permits separate convictions for both * * *." Id.

{¶ 79} In that light, we find that the murder statute at issue in this matter is intended to punish the taking of a human life while engaging in violence against another, while the proscription against child endangering, in principle, is for the separate overall purpose of protecting children against any type of abuse or torture, which, in this instance, resulted in serious physical harm and eventual death. Therefore, even though the two offenses were based on the same course of conduct timeframe (November 26, 2015 through March 4, 2016), we hold the trial court in the case sub judice did not err in refusing to merge the two offenses for sentencing.

{¶ 80} Appellant's Seventh Assignment of Error is overruled.

{¶ 81} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.

Baldwin, J., and Wise, Earle, J., concur.