[Cite as State v. Galbraith, 2012-Ohio-5231.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-11-61 

 v. 

MICHAEL T. GALBRAITH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 11-CR-231 

Judgment Affirmed 

Date of Decision: November 13, 2012 

 

APPEARANCES: 

Kevin P. Collins for Appellant 

Brent Yager for Appellee 
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ROGERS, J. 

{¶1} Defendant-Appellant, Michael Galbraith, appeals the judgment of the 

Court of Common Pleas of Marion County convicting him of assault on a 

corrections officer. On appeal, Galbraith claims that the trial court erred by: (1) 

handing down a conviction that was against the manifest weight of the evidence; 

(2) admitting testimony regarding his intent; (3) excluding testimony regarding his 

injuries; (4) refusing to instruct the jurors on the defense of voluntary intoxication; 

and (5) failing to provide a fair trial due to the existence of cumulative error. For 

the reasons that follow, we affirm the judgment of the trial court. 

{¶2} On May 26, 2011, the Grand Jury of Marion County indicted 

Galbraith with one count of assault on a corrections officer in violation of R.C. 

2903.13(A), a felony of the fifth degree. The indictment arose from a May 10, 

2011 incident in which Galbraith allegedly kicked Sergeant Michael King, a 

corrections officer, while being booked at the Multi-County Correctional Facility 

in Marion, Ohio (“Multi-County”). Officer Andrew Isom of the Marion Police 

Department had arrested Galbraith about a half an hour before the incident for 

disorderly conduct, a misdemeanor offense, and had transported Galbraith to 

Multi-County. 

{¶3} A jury trial commenced on October 11, 2011 and ended the next day. 

The following relevant evidence was presented at trial. 
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{¶4} Sergeant King testified that Galbraith was “highly intoxicated,” 

“abusive,” and uncooperative when he first arrived at Multi-County with Officer 

Isom. Trial Tr., p. 90. Due to Galbraith’s behavior, Sergeant King went to the 

booking counter to assist the corrections officers in patting Galbraith down. 

Sergeant King then testified as follows regarding his interaction with Galbraith: 

I asked [Galbraith] if he was gonna cooperate and he just looked at 

me and told me “f[---] you.” And I said, “do you have anything in 

your pockets that’s gonna poke, stick me or my officer [during the 

pat-down search]?” He said, “well, f[------] find out yourself.” * * * 

He would not let us pat him down. He tried turning on us a couple 

times at the counter so we secured him again, gave him another 

chance to let us pat him down and everything and just – “I’ll f[---] 

you guys up.” Id. at 93-94. 

{¶5} Since Galbraith continued to be uncooperative, the officers decided to 

take him to the ground in an attempt to subdue him. Sergeant King described the 

incident as follows: 

A: He [Galbraith] – I was standing to his left straddling his left 

leg, securing his left arm, and just as we were getting ready to take 

him to the ground, he lifted his leg up, he tried to take out my left 

knee. 

Q: Did he actually strike you with his left foot? 

A: Yes. 

Q: I guess a horse kick, would that be a good description? 

A: Yes. Id. at 94. 
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After Galbraith’s kick, Sergeant King and the other corrections officers threw 

Galbraith to the ground and subdued him. During cross-examination, the record 

reflects that Sergeant King did a physical demonstration of Galbraith’s kicking 

motion. On redirect examination, Sergeant King testified that he had “[n]o doubt 

whatsoever” that Galbraith “was trying to take out [his] knee.” Id. at 121. 

{¶6} During Sergeant King’s testimony, the State played the video of the 

incident, which was admitted as Joint Exhibit 1. When the kick occurred, Officer 

Isom was standing in a position that obstructed the camera’s view. However, the 

video shows Galbraith picking his leg up before delivering the kick described by 

Sergeant King and it shows Sergeant King reacting to the kick. The video also 

shows the resulting scuffle in which the corrections officers subdued Galbraith. 

{¶7} The State later called Nurse Mary Sprang, who is an in-house licensed 

practical nurse (“LPN”) at Multi-County. On cross-examination, Galbraith’s trial 

counsel attempted to elicit testimony regarding the existence and treatment of 

Galbraith’s knee injury: 

Q: After [Galbraith’s] second refusal [of medical treatment] you 

then checked Mr. Galbraith the next day, didn’t you? 

A: No, the other nurse did, yeah, on the day shift, and she 

contacted the doctor. 

Q: Did you ever x-ray Mr. – x-ray Mr. Galbraith to see that his 

knee was fractured, didn’t you? 

* * * 
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[Prosecutor]: Judge, I’ll object. I don’t believe she is in a position to 

do that. 

The Court: Ask her what she did to treat this gentleman. 

Q: What did you do to treat Mr. Galbraith? 

A: I don’t know how to answer you, but the other nurse called 

the doctor – can I just tell you what happened, is that okay? 

* * * 

The Court: Hang on a minute. What did you do to treat this 

gentleman during this period of time? Your treatment of him, what 

did you do with him? 

A: When I got the x-ray results back I notified the doctor. 

The Court: From whom? 

A: I didn’t get the order from the x-ray, Judge. 

The Court: All right, that’s your answer. 

Q: What did the x-ray results indicate? 

[Prosecutor]: Object Judge, it calls for a hearsay answer. 

The Court: That’s sustained. 

Q: You notified [a police officer] that Mr. Galbraith had a 

fractured knee and needed to go to the Marion General Hospital, 

didn’t you? 

A: No – 

[Prosecutor]: Judge, once again I’ll object. 

The Court: Hold it. Approach. Id. at 159-61. 
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{¶8} At this point, the trial court judge excused the jury and admonished 

Galbraith’s trial counsel for pursuing this line of questioning in a manner that was 

inconsistent with the Rules of Evidence. When the jury returned, Galbraith’s trial 

counsel again explored the line of questioning regarding Galbraith’s fractured 

knee: 

Q: What did you observe when Mr. Galbraith came back from 

the hospital, Nurse Sprang? 

A: When he came back from the hospital? 

Q: From Marion General? 

A: He had an immobilizer on – 

[Prosecutor]: Judge, I’ll object. I’m not sure how it’s relevant. 

The Court: Sustained. Id. at 162-63. 

Galbraith’s trial counsel put a proffer on the record as to what Nurse Sprang’s 

testimony would cover: 

For the record I would like to proffer that Nurse Sprang would 

testify that Mr. Galbraith was given a portable x-ray at Multi-County 

Jail which indicated that he had a fracture of his knee the next 

morning. The next evening she ordered him sent to Marion General 

for the knee fracture and that they also indicated his knee was – his 

kneecap was fractured. At that time she would have followed the 

doctor’s orders, and she would indicate such in her nurse’s notes. 

And she did tell me that she did do an x-ray at the correctional 

institute and then an x-ray at Marion General and Morrow County 

Hospitals. All indicated a fracture of the kneecap. Id. at 189-90. 
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{¶9} Officer Isom then testified that on the date of the incident he was on 

patrol and responded to an emergency call in which the caller said that a drunken 

man had passed out in her neighbor’s garden. When Officer Isom arrived in the 

area, he discovered Galbraith walking in the street. He identified Galbraith as 

intoxicated, arrested him for disorderly conduct, and took him to Multi-County. 

 Officer Isom was present throughout the incident in which Galbraith 

allegedly kicked Sergeant King and he testified as follows: 

A: As I’m walking around the [booking] counter I see 

[Galbraith] starting coming off the counter like he’s trying to swing 

around on [Sergeant King]. * * * [S]o when I came around the 

corner I saw him try to turn and then I saw [Galbraith] pick up his 

left leg and kick back toward Sergeant King’s knee and I kind of saw 

Sergeant King’s knee kind of go out from him * * *. 

Q: So you saw [Galbraith] rear up and kick at Sergeant King? 

A: Saw him lift his leg up and kick back. Id. at 170. 

On cross-examination, Officer Isom did a physical demonstration of Galbraith’s 

kicking motion that was consistent with Sergeant King’s earlier demonstration. 

Then, on redirect examination, Officer Isom testified that Galbraith was “trying to 

take out [Sergeant King’s] knee” and that he was attempting “to cause injury” to 

Sergeant King. Id. at 187. 

{¶10} During the pendency of the trial, Galbraith filed proposed jury 

instructions on October 12, 2011. The proposal included a request for a voluntary 

intoxication instruction that read “[i]ntoxication is not an excuse for an offense. 
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However, evidence of intoxication has been admitted for the purpose of showing 

that the defendant was so intoxicated that he was incapable of performing the act 

with which he has been charged.” (Docket No. 42, p. 2). The trial court denied 

the issuance of such an instruction because the evidence did not suggest that 

Galbraith was physically incapable of assaulting a corrections officer as alleged. 

{¶11} On October 12, 2011, the jury returned a guilty verdict against 

Galbraith. The matter then proceeded to sentencing with a hearing on December 

12, 2011 for that purpose. On December 14, 2011, the trial court issued a 

judgment entry of sentencing that ordered Galbraith to serve 11 months in prison. 

{¶12} Galbraith filed this timely appeal, presenting the following 

assignments of error for our review. Before listing those assignments of error, we 

preliminarily note that the State did not file an appellate brief. App.R. 18(C) gives 

us the discretion to “accept [Galbraith’s] statement of facts and issues as correct 

and reverse the judgment if [Galbraith’s] brief reasonably appears to sustain such 

action.” 

Assignment of Error No. I 

DEFENDANT-APPELLANT’S CONVICTION FOR ASSAULT 

IS CONTRARY TO THE MANIFEST WEIGHT OF THE 

EVIDENCE. 
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Assignment of Error No. II 

THE TRIAL COURT COMMITTED PLAIN ERROR IN 

ALLOWING OFFICER ISOM TO TESTIFY ABOUT 

DEFENDANT-APPELLANT’S INTENT. 

Assignment of Error No. III 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY EXCLUDING TESTIMONY 

OF NURSE SPRANG. 

Assignment of Error No. IV 

THE TRIAL COURT ERRED TO THE PREJUDICE OF 

DEFENDANT-APPELLANT BY REFUSING TO GIVE THE 

JURY INSTRUCTION REGARDING INTOXICATION. 

Assignment of Error No. V

THE COMBINATION OF THE AFOREMENTIONED 

ERRORS ARE SUFFICIENT TO CALL INTO QUESTION 

THE VALIDITY OF THE VERDICT, PREVENTING THE 

APPELLANT FROM OBTAINING THE FAIR TRIAL 

GUARANTEED BY THE FIFTH AND SIXTH 

AMENDMENTS TO THE U.S. CONSTITUTION AS MADE 

APPLICABLE TO THE STATES BY THE FOURTEENTH 

AMENDMENT, AND ARTICLE ONE, SECTIONS TEN AND 

SIXTEEN OF THE OHIO CONSTITUTION. 

{¶13} Due to the nature of the assignments of error, we address them out of 

order. 
Case No. 9-11-61 

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Assignment of Error No. II

{¶14} In his second assignment of error, Galbraith contends that the trial 

court committed plain error in allowing Officer Isom to testify about Galbraith’s 

intent in attempting to kick the victim. We disagree. 

{¶15} Before turning to the merits of Galbraith’s contention, there are two 

deficiencies in this assignment of error that need to be resolved. First, we note 

that Galbraith has failed to provide legal authorities to support his position that 

Officer Isom was unable to testify regarding Galbraith’s intent in kicking Sergeant 

King. This is violative of App.R. 16(A)(7), which requires that the appellant 

provide “[a]n argument containing [his] contention * * * with citations to the 

authorities * * * on which appellant relies.” Although App.R. 12(A)(2) gives us 

the authority to consequently disregard this assignment of error, we will proceed 

to address it in the interests of justice. See State v. Thomas, 3d Dist. No. 10-10-17, 

2011-Ohio-4337, ¶ 25. 

{¶16} Second, this assignment of error only complains of Officer Isom’s 

testimony regarding Galbraith’s intent in kicking Sergeant King’s leg. But, a 

review of the record reveals that Sergeant King likewise testified that he had “no 

doubt whatsoever” that Galbraith was “trying to take out [his] knee.” Trial Tr., p. 

121. Due to the concordant nature of Sergeant King’s and Officer Isom’s 
Case No. 9-11-61 

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testimonies, we treat this assignment of error as covering both officers’ 

descriptions of Galbraith’s intent. 

Plain Error Standard

{¶17} Galbraith did not object to the admission of Officer Isom’s or 

Sergeant King’s testimony at the trial court level. Consequently, our review is 

limited to the existence of plain error in the trial court proceedings. See State v. 

Balo, 3d Dist. No. 1-10-48, 2011-Ohio-3341, ¶ 48. To have plain error under 

Crim.R. 52(B), there must be an error that both constitutes an “obvious” defect in 

the trial proceedings and affects “substantial rights.” State v. Barnes, 94 Ohio 

St.3d 21, 27 (2002). Plain error is to be used “with the utmost caution, under 

exceptional circumstances and only to prevent a manifest miscarriage of justice.” 

Id. Plain error exists only in the event that it can be said that “but for the error, the 

outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio 

St.3d 426, 436 (1997); see State v. Johnson, 3d Dist. No. 2-98-39 (June 30, 1999). 

Opinion Testimony

{¶18} Neither Officer Isom nor Sergeant King was offered as an expert 

witness. Accordingly, we consider whether their testimony was permissible as 

opinion testimony by lay witnesses. Evid.R. 701 controls lay opinion testimony 

and it limits such testimony to “those opinions or inferences which are (1) 

rationally based on the perception of the witness and (2) helpful to a clear 
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understanding of the witness’ testimony or the determination of a fact in issue.” In 

State v. Kehoe, 133 Ohio App.3d 591 (12th Dist. 1999), the defendant complained 

of the police officer’s opinion testimony that his actions evinced an intent to kill. 

There, the court rejected the defendant’s argument and affirmed the admission of 

the testimony because it was drawn from the officer’s personal observations of the 

defendant’s conduct. Id. at 612. Other courts have reached the same finding and 

have allowed lay opinion testimony regarding a criminal defendant’s intent, 

provided that the testimony is based on the witness’s personal observations and 

inferences. See State v. Shells, 2d Dist. No. 20802, 2005-Ohio-5787, ¶ 34 (finding 

that victim’s testimony regarding the defendant’s intent to rob was properly 

admitted); City of Ashtabula v. Smith, 11th Dist. No. 2000-A-0029 (May 18, 2001) 

(finding that witness’s testimony as to the defendant’s intent to assault was 

properly admitted); State v. Crenshaw, 8th Dist. No. 60671 (June 4, 1992) (finding 

that police officer could testify regarding the defendant’s intent to distribute drugs 

based on his discoveries during investigation). 

{¶19} This matter falls within the Kehoe ambit of cases. Officer Isom and 

Sergeant King provided thorough testimony regarding their observations of 

Galbraith both before and after the kicking. They personally endured Galbraith’s 

verbal abuse, which included various threats of harm to them, and they were 

present throughout the incident in which he kicked Sergeant King. Based on these 
Case No. 9-11-61 

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observations, Officer Isom and Sergeant King were able to rationally infer 

Galbraith’s intent in kicking Sergeant King. Consequently, we find that their 

testimony regarding Galbraith’s intent is properly admissible as lay opinion 

testimony. 

{¶20} Even if Officer Isom’s and Sergeant King’s testimony was 

inadmissible opinion testimony, its erroneous admission would still be harmless. 

The testimony adduced at trial is replete with references to Galbraith’s 

combativeness during the booking process and his threats of violence towards the 

officers. The jury also received testimony from Officer Isom and Sergeant King 

regarding Galbraith’s kicking and they partially saw the incident in the video. 

Based on the evidence of Galbraith’s conduct, the jury could still find the 

existence of intent on Galbraith’s part to cause physical harm without considering 

Officer Isom’s and Sergeant King’s testimony. 

{¶21} Accordingly, we overrule Galbraith’s second assignment of error. 

Assignment of Error No. III

{¶22} In his third assignment of error, Galbraith argues that the trial court 

erroneously excluded Nurse Sprang’s testimony regarding his fractured knee as 

irrelevant. We disagree. 

{¶23} Evid.R. 401 defines relevant evidence as “evidence having any 

tendency to make the existence of any fact that is of consequence to the 
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determination of the action more or less probable than it would be without the 

evidence.” The admission or exclusion of evidence under Evid.R. 401 is within 

the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180 

(1987). Consequently, we only disturb the trial court’s decision to exclude 

evidence as irrelevant upon a showing of abuse of discretion. State v. Blakenship, 

102 Ohio App.3d 534, 549 (12th Dist. 1995). A trial court will be found to have 

abused its discretion when its decision is contrary to law, unreasonable, not 

supported by the evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 

23037, 2010-Ohio-278, ¶ 16-18, citing Black’s Law Dictionary 11 (8th Ed.2004). 

When applying the abuse of discretion standard, a reviewing court may not simply 

substitute its judgment for that of the trial court. State v. Nagle, 11th Dist. No. 99-

L-089 (June 16, 2000), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 

(1983). 

{¶24} Here, Galbraith’s trial counsel proffered that Nurse Sprang would 

merely testify that she took an x-ray of Galbraith’s knee on the morning of May 

11, 2011 and that the x-ray indicated Galbraith had a fractured knee. Neither this 

proffer nor the line of questioning surrounding Galbraith’s injuries contains 

evidence of which knee was fractured, when the knee was fractured, or how the 

knee was fractured. Without this information, we are unable to assess the 

probative value of the evidence. Consequently, we are unable to find that it was 
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an abuse of discretion for the trial court to exclude Nurse Sprang’s testimony as 

irrelevant. 

{¶25} Further, even if the trial court should have admitted Nurse Sprang’s 

testimony, its exclusion would only constitute harmless error. Both Officer Isom 

and Sergeant King testified that Galbraith deliberately kicked Sergeant King and 

the video of the incident is consistent with such a kick. The admission of Nurse 

Sprang’s testimony regarding Galbraith’s knee injury would not reduce the import 

of this evidence or affect the outcome of the trial. 

{¶26} Accordingly, we overrule Galbraith’s third assignment of error. 

Assignment of Error No. IV 

{¶27} In his fourth assignment of error, Galbraith suggests that the trial 

court’s refusal to instruct the jury on the defense of voluntary intoxication is 

reversible error. We disagree. 

{¶28} We review a trial court’s refusal to give a jury instruction for abuse 

of discretion. State v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10. In 

performing this review, we are mindful that “[a] strong presumption exists in favor 

of the propriety of jury instructions.” Schnipke v. Safe-Turf Installation Group, 

L.L.C., 190 Ohio App.3d 89, 2010-Ohio-4173, ¶ 30. “It is well-settled that a 

criminal defendant is entitled to a complete and accurate jury instruction on all 

issues raised by the evidence.” State v. Wilson, 3d Dist. No. 14-06-19, 2006-Ohio-
Case No. 9-11-61 

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6930, ¶ 43; see also Schnipke at ¶ 30 (“Generally, the trial court should give 

requested jury instructions if they are correct statements of the law applicable to 

the facts in the case.”). A failure to provide such a jury instruction amounts to 

prejudicial error. State v. Scott, 26 Ohio St.3d 92, 101 (1986). In assessing 

whether a trial court’s refusal to give a jury instruction was proper, we determine 

if there was sufficient evidence in the record to allow “reasonable minds [to] reach 

the conclusion sought by the instruction.” Murphy v. Carrollton Mfg. Co., 61 

Ohio St.3d 585, 591 (1991). 

{¶29} Ohio recognizes the defense of voluntary intoxication in only one 

circumstance. Under R.C. 2901.21(C), “[e]vidence that a person was voluntarily 

intoxicated may be admissible to show whether or not the person was physically 

capable of performing the act with which the person is charged.” For the defense 

to apply, the defendant’s state of intoxication must rise to the “level of 

unconsciousness.” State v. McClaskey, 6th Dist. No. 05AP-882, 2006-Ohio-6646, 

¶ 11. In McClaskey, the court affirmed the trial court’s denial of a voluntary 

intoxication instruction because the record showed that the defendant was capable 

of talking with the arresting police officers and that his statements showed an 

ability to recall previous events with the officers. Id. at ¶ 12-13; see also State v. 

Townsend, 7th Dist. No. 04 MA 110, 2005-Ohio-6945, ¶ 72 (affirming denial of 
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voluntary intoxication instruction where the defendant was capable of driving and 

obtaining weapons despite his level of intoxication). 

{¶30} Here, the evidence presented during trial did not establish that 

Galbraith was intoxicated to the point of unconsciousness, which compels us to 

reach the same finding as the McClaskey and Townsend courts. Galbraith was 

capable of walking into the correctional facility, standing at the booking desk, and 

shouting threatening remarks to the corrections officers and Officer Isom. Further, 

the video of the incident showed Galbraith lifting his left leg. Based on these 

actions, we find that Galbraith was physically capable of kicking Sergeant King 

and that there was no evidence in the record to support the issuance of a voluntary 

intoxication instruction. Consequently, the trial court did not commit an abuse of 

discretion in denying such an instruction. 

{¶31} Accordingly, we overrule Galbraith’s fourth assignment of error. 

Assignment of Error No. I

{¶32} In his first assignment of error, Galbraith argues that his conviction 

for assault of a police officer is contrary to the manifest weight of the evidence. 

Specifically, Galbraith claims that the evidence presented at trial established the 

following items, none of which supports a guilty verdict: (1) that, as a result of 

voluntary intoxication, he was physically incapable of assaulting Sergeant King; 
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(2) that he did not perform a voluntary act; and (3) that the injury he caused was 

de minimis. We disagree. 

{¶33} When an appellate court analyzes a conviction under the manifest 

weight standard it must review the entire record, weigh all of the evidence and all 

of the reasonable inferences, consider the credibility of the witnesses, and 

determine whether, in resolving conflicts in the evidence, the fact finder 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, (1997), superseded by constitutional amendment on other grounds as stated 

by State v. Smith, 80 Ohio St.3d 89 (1997), quoting State v. Martin, 20 Ohio 

App.3d 172, 175 (1st Dist. 1983). Only in exceptional cases, where the evidence 

“weighs heavily against the conviction,” should an appellate court overturn the 

trial court’s judgment. Id. 

{¶34} Galbraith was convicted of assault. R.C. 2903.13(A) is the relevant 

statute and it states that “[n]o person shall knowingly cause or attempt to cause 

physical harm to another or to another’s unborn.” The term “knowingly” means 

when a person “is aware that his conduct will probably cause a certain result or 

will probably be of a certain nature.” R.C. 2901.22(B). Additionally, “physical 

harm” refers to “any injury, illness, or other physiological impairment, regardless 

of its gravity or duration.” R.C. 2901.01(A)(3). 
Case No. 9-11-61 

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{¶35} A review of the record reveals three key items of evidence that 

support a guilty finding in this matter. First, Sergeant King testified that Galbraith 

kicked him on his left leg. Further, Sergeant King described Galbraith as lifting 

his left leg and kicking backwards. Second, Officer Isom, who was immediately 

next to Sergeant King at the time of the alleged assault, similarly testified that he 

saw Galbraith kick Sergeant King in this fashion. Indeed, both officers 

demonstrated the same kicking motion for the jurors. See State v. Hamblett-Catt, 

3d Dist. No. 15-05-10, 2005-Ohio-5894, ¶ 18 (finding that assault conviction was 

not contrary to the manifest weight of the evidence where the alleged victim 

testified that the defendant hit her). 

{¶36} Third, the video of the incident is consistent with both Sergeant 

King’s and Officer Isom’s testimony. While Officer Isom’s placement partially 

obstructs the camera view and prevents viewers from observing the actual kick, 

the video captures images that are consistent with the type of kick the officers 

described. It shows Galbraith lifting his left leg and it shows Sergeant King lean 

back as though he has been kicked. Based on this, we find that the video is 

supportive of a conviction. In light of these three items of evidence, we do not 

find that Galbraith’s conviction is against the manifest weight of the evidence. 

{¶37} Galbraith’s arguments to the contrary are unavailing. As stated 

above, the evidence does not suggest that his voluntary intoxication rendered 
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Galbraith physically incapable of kicking Sergeant King. Rather, the evidence 

established that Galbraith was indeed capable of walking and talking so as to 

preclude the applicability of R.C. 2901.21(C). See State v. Armstrong, 7th Dist. 

No. 2007-G-2756, 2007-Ohio-6405, ¶ 25 (finding that the defendant’s voluntary 

intoxication did not establish that conviction was against manifest weight of the 

evidence since the defendant was physically capable of operating a bulldozer). 

{¶38} Further, the testimony of Officer Isom and Sergeant King established 

that Galbraith’s kicking motion was voluntary. For a defendant to be criminally 

liable, his actions must be voluntary. R.C. 2901.21(A)(1). While “voluntary” is 

not precisely defined, the Revised Code does state that “[r]eflexes, convulsions, 

body movements during unconsciousness or sleep, and body movements that are 

not otherwise a product of the actor’s volition” constitute “involuntary acts.” R.C. 

2901.21(D)(2). The evidence at trial established that Sergeant King and another 

corrections officer were using some degree of force to restrain Galbraith at the 

time that he kicked Sergeant King. However, there is no indication, besides 

Galbraith’s own characterization of the evidence, that the officers’ restraining 

activities overcame Galbraith’s volition and caused the kicking motion. Rather, 

both Officer Isom and Sergeant King testified that they saw Galbraith lift his left 

leg and kick out towards Sergeant King’s leg in a deliberate fashion. Based on 
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this evidence, we decline to adopt Galbraith’s characterization of his act as 

involuntary. 

{¶39} Finally, we reject Galbraith’s contention regarding the de minimis

nature of Sergeant King’s injury as immaterial to his assault conviction. 

Critically, we note that the assault statute proscribes both “caus[ing]” and 

“attempt[ing] to cause” physical harm. R.C. 2903.13(A). The court seized upon 

this language in State v. Brown, 2d Dist. No. 20737, 2005-Ohio-3871, to affirm 

the defendant’s assault conviction. There, the defendant punched the victim, but 

the victim neither claimed to have sustained any injury nor displayed any sign of 

injury. Nevertheless, the Court of Appeals affirmed his conviction on the 

reasoning that the circumstances of the case, including the punch itself, established 

that the defendant “attempted to cause physical harm to [the victim] even though 

he apparently failed to actually injure [the victim].” Id. at ¶ 9; compare State v. 

Smith, 3d Dist. No. 13-03-25, 2003-Ohio-5461, ¶ 32 (interpreting domestic 

violence statute, which similarly criminalizes “caus[ing] or attempt[ing] to cause 

physical harm,” as allowing “[a] defendant [to] be found guilty of domestic 

violence even if the victim sustains only minor injuries, or sustains no injury at 

all”). 

{¶40} Here, the State offered no evidence regarding Sergeant King’s injury 

from the kick. But, this is not a fatal flaw in the State’s case. According to 
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Officer Isom’s and Sergeant King’s testimony, Galbraith deliberately raised his 

left leg, kicked backwards, and landed a blow on Sergeant King’s leg. From this, 

the jurors could glean that Galbraith was attempting to cause physical harm to 

Sergeant King. Consequently, we find Galbraith’s argument that Sergeant King’s 

injury was de minimis to be unpersuasive. 

{¶41} In sum, the State offered the testimony of Officer Isom and Sergeant 

King that Galbraith kicked Sergeant King in his left leg. Further, the video of the 

incident reveals a sequence of events that is consistent with the officers’ 

testimony. Meanwhile, Galbraith’s arguments regarding his voluntary 

intoxication, his allegedly involuntary action, and Sergeant King’s de minimis 

injury are unavailing and immaterial to our finding that Galbraith’s assault 

conviction is not contrary to the manifest weight of the evidence. 

{¶42} Accordingly, we overrule Galbraith’s first assignment of error. 

Assignment of Error No. V

{¶43} In his fifth assignment of error, Galbraith contends that cumulative 

error in the trial court proceedings deprived him of due process. We disagree. 

{¶44} The doctrine of cumulative error provides that “a conviction will be 

reversed where the cumulative effect of errors in a trial deprives a defendant of the 

constitutional right to a fair trial even though each of numerous instances of trial 

court error does not individually constitute cause for reversal.” State v. Baucom, 
Case No. 9-11-61 

-23- 

3d Dist. No. 17-03-14, 2003-Ohio-6986, ¶ 6, quoting State v. Leach, 150 Ohio 

App.3d 567, 2002-Ohio-6654, ¶ 57 (1st Dist.). The appellant must show that there 

is a reasonable probability that but for the errors, the trial outcome would have 

been different. State v. Ray, 3d Dist. No. 14-05-39, 2006-Ohio-5640, ¶ 68. Here, 

because we have found no errors in Galbraith’s previous assignments, his 

argument that cumulative error has resulted in a denial of due process must also 

necessarily fail. State v. Bradley, 3d Dist. No. 15-10-03, 2010-Ohio-5422, ¶ 83. 

{¶45} Accordingly, we overrule Galbraith’s fifth assignment of error. 

{¶46} Having found no error prejudicial to Galbraith, in the particulars 

assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

SHAW, P.J. and PRESTON, J., concur. 

/jlr