Opinion
CASE NO. 2016CA00223
04-03-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. JASON MATTHEW TYO DEFENDANT-APPELLANT
APPEARANCES: For Plaintiff-Appellee: Atty. John D. Ferrero Stark County Prosecutor Atty. Renee M. Watson Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South - Suite 510 Canton, Ohio 44702-1413 For Defendant-Appellant: Atty. Mary G. Warlop Abney Law Office, LLC 116 Cleveland Ave. N.W., Suite 500 Canton, Ohio 44702
OPINION CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Stark County, Ohio Case No. 2016 CR 1507 JUDGMENT: Affirmed. APPEARANCES: For Plaintiff-Appellee: Atty. John D. Ferrero
Stark County Prosecutor
Atty. Renee M. Watson
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413 For Defendant-Appellant: Atty. Mary G. Warlop
Abney Law Office, LLC
116 Cleveland Ave. N.W., Suite 500
Canton, Ohio 44702 JUDGES: Hon. Cheryl L. Waite of the Seventh District Court of Appeals, sitting by assignment.
Hon. Gene Donofrio of the Seventh District Court of Appeals, sitting by assignment.
Hon. Carol Ann Robb of the Seventh District Court of Appeals, sitting by assignment. WAITE, J.
{¶1} Appellant Jason Matthew Tyo appeals his conviction in the Stark County Court of Common Pleas for assault, a first degree misdemeanor in violation of R.C. 2903.13. A single issue is presented in this case. Appellant argues on appeal his conviction was not supported by sufficient evidence, as the identity of the perpetrator was not proven beyond a reasonable doubt. A review of the record before us reveals that, although the state did not have any of its witnesses directly identify Appellant in the courtroom during trial, the record contains sufficient circumstantial evidence to establish that Appellant was the offender. Appellant's assignment of error is without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On July 26, 2016, Deputy Dominic Antenora ("Antenora") responded to a report of domestic violence on Blake Avenue in Plain Township. When Antenora arrived at the residence he found Gale Gardiner ("Gardiner") sitting on the front porch. She had blood on her face and hands, her neck was red and she was extremely emotional. She informed Antenora that she had been choked and head butted by her boyfriend, Appellant. Antenora took photographs of Gardiner at the scene and questioned her briefly. Gardiner provided a physical description and date of birth for Appellant. She also stated that Appellant's car was parked at her residence. Antenora retrieved Appellant's driver's license photograph from the computer in his police cruiser based on the information given by Gardiner. Gardiner was taken to the hospital and released the same day. Utilizing the driver's license photograph, Antenora proceeded to search for Appellant that evening, without success.
{¶3} In October of 2016 the Stark County Grand Jury returned an indictment charging Appellant with one count of domestic violence, in violation of R.C. 2919.25(A). It was a fourth degree felony due to Appellant's previous conviction for domestic violence. The matter proceeded to a jury trial on November 17, 2016.
{¶4} At trial, the state presented four witnesses: Antenora; Gardiner; Margit Batizy ("Batizy"), a physician assistant who treated Gardiner in the emergency room; and Jeremy Guenther ("Guenther"), an employee with the Plain Township Fire Department who arrived at the scene to treat Gardiner's injuries. At the close of the state's evidence, Appellant's counsel made a Crim.R. 29 motion to dismiss, contending that the state failed to establish that Appellant was the perpetrator who committed the offense. The trial court overruled the motion. Appellant rested without presenting any evidence. Appellant's counsel renewed his Crim.R. 29 motion which was again overruled.
{¶5} Appellant requested a jury instruction on the lesser included offense of assault, a first degree misdemeanor. The jury acquitted Appellant of domestic violence and convicted him of the assault. The trial court sentenced Appellant to 180 days in jail with credit for time served. Appellant presents this timely appeal.
ASSIGNMENT OF ERROR
WHETHER THE JURY'S FINDING OF GUILT WAS SUPPORTED BY SUFFIECIENT [SIC] EVIDENCE?
{¶6} Sufficiency of the evidence is a legal question dealing with whether the state met its burden of production at trial. State v. Murphy, 5th Dist. No. 2015CA00024, 2015-Ohio-5108, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶7} "Specifically, an appellate court's function, when reviewing the sufficiency of the evidence to support a criminal conviction, is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." Murphy at ¶ 15. The test for sufficiency of the evidence raises a question of law and does not permit the court to weigh the evidence. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 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. Murphy at ¶ 15 citing Thompkins at 386.
{¶8} Appellant contends the state rested its case without establishing the identification of Appellant as the perpetrator of the crime. At the close of the state's case, Appellant's counsel moved for dismissal pursuant to Crim.R. 29. (11/7/16 Tr., p. 249.) The trial court denied the motion. Appellant then rested without presenting any evidence and renewed the Crim.R. 29 motion which was again denied by the trial court. Appellant asserts that an essential element of the crime was omitted from the state's case and thus, there was insufficient evidence on which to convict Appellant of assault.
{¶9} The elements of the crime of assault are codified in R.C. 2903.13(A): "No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn."
{¶10} In response to Appellant's contention that the state failed to identify him as the perpetrator of the crime, Appellee correctly asserts that the identity of a perpetrator can be proven by either direct or circumstantial evidence. Appellee also points out that Antenora testified he relied on a driver's license photo of Appellant in conducting his investigation, and that Antenora identified Appellant in the courtroom and testified that Appellant matched the description of the individual he was looking for on the night of the incident. Gardiner testified that she knew the defendant and identified her 911 call at trial in which she reported it was Appellant who had assaulted her. Gardiner also gestured toward Appellant during trial while discussing her relationship with him.
{¶11} Any type of either direct or circumstantial evidence may be utilized to establish the identity of the perpetrator of a crime. State v. Bridge, 60 Ohio App.3d 76, 77, 573 N.E.2d 762 (6th Dist.1989). Interestingly, in-court identifications have been held to be a less reliable indicator of perpetrator identity than other types of identification. State v. Reaves, 130 Ohio App.3d 776, 783, 721 N.E.2d 424 (1st Dist.1998), fn. 6.
{¶12} The record reflects that Appellant was sufficiently identified as the perpetrator of the crime. Deputy Antenora testified at trial that he had obtained Appellant's driver's license photo from his cruiser computer on the night of the incident based on the information provided by Gardiner. On direct examination Antenora was asked whether the defendant matched the description of the offender he was looking for and he responded "yes." (11/7/16 Tr., pp. 174-175.)
{¶13} During Gardiner's testimony she stated that she and the "defendant" (Appellant) were no longer dating but that they still spoke once or twice a day. (11/7/16 Tr., p. 206.) Gardiner also testified at length about the incident between her and Appellant and authenticated both the photos of her injuries and the recording of the 911 call in which she states Appellant caused her injuries.
{¶14} Appellee also contends that Gardiner repeatedly gestured toward Appellant when testifying about her relationship with him. A review of the transcript does not, as a matter of course, indicate any nonverbal gestures made by a testifying witness. However, when presented with the Crim.R. 29 motion to dismiss by Appellant's counsel, the trial court stated:
There was - - I would note for the record that there was in addition to Deputy Antenora's explanation and his gesturing towards the Defendant there that I was watching Ms. Gardiner in her testimony, and although she looked down for a good bit of it, when she was discussing her relationship with Mr. Tyo, she did look over at him and, and gestured with her head on a couple of occasions toward him.
{¶15} Thus, the trial court noted that two of the witnesses had identified Appellant by his physical description and had gestured to indicate that Appellant was the perpetrator. Also, as his former girlfriend and the victim of the crime, Gardiner would certainly be in a position to acknowledge Appellant as the perpetrator of the offense. The credibility of each of the witnesses is presumed when analyzing a sufficiency of the evidence question, as appellate review focuses on the state's burden of production. Murphy at ¶ 13. The reviewing court does not determine whether the evidence presented by the state is to be believed, but, whether, if it is believed, the evidence would support a conviction. Murphy at ¶ 15. When reviewing the evidence in this matter in a light most favorable to the prosecution, including the testimony of the state's witnesses as to the identity of the offender, the state presented sufficient evidence identifying Appellant as the perpetrator of the offense in the case at bar.
{¶16} For the foregoing reasons, Appellant's assignment of error is overruled and the judgment of the trial court is affirmed. Donofrio, J., concurs. Robb, P.J., concurs.