[Cite as State v. Frazier, 2011-Ohio-1206.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDARRELL FRAZIER 

 Defendant-Appellant 

JUDGES: 

Hon. Willilam B. Hoffman, P.J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2010CA00172 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of 

Common Pleas, Case No. 2010CR0318 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: March 14, 2011 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO, MATTHEW PETIT 

PROSECUTING ATTORNEY, 116 Cleveland Ave. North 

STARK COUNTY, OHIO Suite 808, Courtyard Centre 

 Canton, Ohio 44702 

BY: RONALD MARK CALDWELL 

Assistant Prosecuting Attorney 

Appellate Section 

110 Central Plaza, South – Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2010CA00172 2

Hoffman, P.J. 

{¶1} Defendant-appellant Darrell Frazier appeals his conviction and sentence 

entered by the Stark County Court of Common Pleas, on one count of felonious assault, 

following a jury trial. Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE CASE AND FACTS 

{¶2} On April 2, 2010, the Stark County Grand Jury indicted Appellant on one 

count of felonious assault, in violation of R.C. 2903.11(A)(1) and/or (A)(2). Appellant 

appeared before the trial court for arraignment on April 9, 2010, and entered a plea of 

not guilty to the Indictment. The matter proceeded to jury on June 7, 2010. 

{¶3} Ronald Gillespie, Jr. testified he and his cousins, Percy Goodman and 

Antonio Goodman, were at Sparky’s, a bar in Canton, on December 27, 2009, 

celebrating his upcoming twenty-first birthday. Another cousin, Evelyn Robinson, 

subsequently joined the three men. The bar closed before 2:00am due to an unrelated 

fight between other bar patrons. Appellant and his cousins exited the bar and walked 

toward the adjoining parking lot. Appellant, James Rianelli, Cortez Everett, Cedric 

Gaines, and Nicholas Harvey were also patrons at Sparky’s that evening, and exited at 

approximately the same time as Gillespie and his cousin. 

{¶4} While in the parking lot, Percy Goodman and Rianelli exchanged some 

words which led to a physical altercation. Everett moved toward Percy Goodman and 

joined the fray when it appeared Percy Goodman had the better of Rianelli. Antonio 

Goodman, upon observing Everett advancing toward his brother, joined the fight. 

Gillespie stayed with Robinson, who was pregnant, closer to the building. Everett 

eventually approached Gillespie, who prepared to defend himself. A fight ensued 
Stark County, Case No. 2010CA00172 3

between Everett and Gillespie during which Gillespie observed Appellant moving toward 

him and then eventually standing behind him. Gillespie turned around and hit Appellant 

“back off of” him. Gillespie turned his attention back toward Everett, taking his focus off 

of Appellant. Someone shouted, “Watch out, he got something!” as Gillespie turned to 

his right he was struck and fell to the ground, unconscious. Percy Goodman, who was 

still fighting with Rianelli, heard girls screaming, “He hit him with something! He hit him 

with something!” The crowd dispersed as paramedics and police arrived at the scene. 

{¶5} Evelyn Robinson testified she was standing with Gillespie when the fight 

between Percy Goodman and Rianelli ensued. Robinson recalled Everett approaching 

Gillespie after he had been prevented from interfering with the Percy Goodman-Rianelli 

fight. Robinson described Everett as approaching in a threatening manner. Because 

Gillespie was getting the better of his friend, Appellant advanced toward Gillespie to 

assist Everett. Gillespie turned toward Appellant, hit him and knocked him back. 

Robinson then observed Appellant pull a set of brass knuckles out of his pocket, and 

strike Gillespie in the back of the head. Gillespie, who was rendered unconscious, fell 

to the ground. Appellant and Everett attempted to stomp on Gillespie, but Robinson 

stood over him. Appellant and Everett left the scene before the police arrived. 

{¶6} Gillespie was transported to the hospital. He sustained a broken facial 

bone and a split tongue as well as a concussion. Doctors placed Gillespie into a 

medically induced coma. The damage to his eye caused by Appellant’s punch required 

plastic surgery. Gillespie did not regain consciousness from the time Appellant hit him 

until two weeks later when doctors awoke him from the medically induced coma. 

Gillespie was placed on a respirator while in the coma. The respirator caused an 
Stark County, Case No. 2010CA00172 4

infection which was so severe doctors had to perform a tracheotomy on him. Gillespie 

was discharged from the hospital on January 16, 2010. However, he was still receiving 

medical care for his injuries at the time of the trial. 

{¶7} Appellant testified on his own behalf. Because he believed Rianelli was 

getting the better of Percy Goodman, Appellant stood back to make sure no one came 

to Goodman’s defense. Appellant believed Gillespie was going to join the fray to help 

his cousin so Appellant struck Gillespie in the jaw. Appellant denied using brass 

knuckles. 

{¶8} After hearing all the evidence and deliberating, the jury found Appellant 

guilty as charged. The trial court sentenced Appellant to a term of imprisonment to a 

term of six years. 

{¶9} It is from this conviction and sentence Appellant appeals, raising the 

following assignments of error: 

{¶10} “I. THE TRIAL COURT’S FINDING OF GUILT WAS AGAINST THE 

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. 

{¶11} “II. THE APPELLANT WAS DEPRIVED OF DUE PROCESS OF BY THE 

MISCONDUCT OF THE PROSECUTOR. 

{¶12} “III. THE APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS 

AND OF ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL PROVIDED 

INEFFECTIVE ASSISTANCE.” 

I 

{¶13} In his first assignment of error, Appellant challenges his conviction as 

against the manifest weight and based upon insufficient evidence. 
Stark County, Case No. 2010CA00172 5

{¶14} On review for manifest weight, a reviewing court is to examine the entire 

record, weigh the evidence and all reasonable inferences, consider the credibility of the 

witnesses and determine whether in resolving conflicts in the evidence, the trier of fact 

clearly lost its way and created such a manifest miscarriage of justice that the judgment 

must be reversed. The discretionary power to grant a new hearing should be exercised 

only in the exceptional case in which the evidence weighs heavily against the 

judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N .E.2d 541 

superseded by constitutional amendment on other grounds as stated by State v. Smith,

80 Ohio St.3d 89, 1997-Ohio-355, 684 N .E.2d 668, citing State v. Martin (1983), 20 

Ohio App.3d 172, 175, 485 N.E.2d 717. Because the trier of fact is in a better position to 

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence 

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass

(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus 1. 

{¶15} “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. The relevant inquiry is whether, after 

viewing the evidence in a light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime proven beyond a reasonable 

doubt.” State v. Jenks (1981), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the 

syllabus, superseded by constitutional amendment on other grounds in State v. Smith,

80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. 
Stark County, Case No. 2010CA00172 6

{¶16} Appellant was convicted of one count of felonious assault, in violation of 

R.C. 2903.11(A)(1) and/or (A)(2), which provides: 

{¶17} (A) No person shall knowingly do either of the following: 

{¶18} (1) Cause serious physical harm to another or to another's unborn; 

{¶19} (2) Cause or attempt to cause physical harm to another or to another's 

unborn by means of a deadly weapon or dangerous ordnance. 

{¶20} Appellant asserts the State failed to prove he knowingly caused serious 

harm to Gillespie or caused physical harm to Gillespie using brass knuckles. Appellant 

further contends the evidence was insufficient to support his conviction as he was acting 

in defense of another. 

{¶21} The culpable mental state of “knowingly” is defined as follows: “A person 

acts knowingly, regardless of his purpose, when he is aware that his conduct will 

probably cause a certain result or will probably be of a certain nature. A person has 

knowledge of circumstances when he is aware that such circumstances probably exist.” 

R.C. 2901.22(B). 

{¶22} Whether a person acts knowingly can only be determined, absent a 

defendant's admission, from all the surrounding facts and circumstances, including the 

doing of the act itself.” State v. Huff (2001), 145 Ohio App.3d 555, 563, 763 N.E.2d 695. 

(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a 

subjective one, but it is decided on objective criteria.” State v. McDaniel (May 1, 1998), 

Montgomery App. No. 16221, (citing State v. Elliott (1995), 104 Ohio App.3d 812, 663 

N.E.2d 412). 
Stark County, Case No. 2010CA00172 7

{¶23} R.C. 2901.01(A)(5) defines “serious physical harm” as “[a]ny physical 

harm that involves some permanent incapacity, whether partial or total, or that involves 

some temporary, substantial incapacity.” When a victim's injuries are serious enough to 

cause him to seek medical treatment, the jury may infer the victim suffered serious 

physical injury. State v. McCoy (Sept. 7, 2000), Franklin App. No. 99AP-1048, citing 

State v. Winston (1991), 71 Ohio App.3d 154, 593 N.E.2d 308; 

{¶24} The evidence reveals Gillespie and Robinson remained away from the 

fray because of Robinson’s pregnancy. Everett approached Gillespie to fight and 

Gillespie was getting the better of Everett, and Appellant proceeded toward Gillespie to 

assist his friend. Gillespie punched Appellant off his back. Thereafter, Appellant 

returned with a pair of brass knuckles and knocked out Gillespie with a single punch. 

Although Appellant insists he did not have brass knuckles, the testimony is viewed in a 

light most favorable to the prosecution, resolving any disputes in favor the State. We 

find the State presented sufficient evidence for the jury to find the essential element of 

knowingly as Appellant, after being pushed out of the fight between Everett and 

Gillespie, returned with a pair of brass knuckles and knowingly struck Gillespie, causing 

serious physical harm. 

{¶25} In support of his position the verdict was against the manifest weight of the 

evidence, Appellant notes Evelyn Robinson was the only witness who testified to 

observing him strike Gillespie with brass knuckles. Both Rianelli and Everett testified 

they did not see Appellant with brass knuckles. Appellant further adds the police did not 

recover brass knuckles and such were not introduced into evidence. Appellant 
Stark County, Case No. 2010CA00172 8

concludes, as a result, the State failed to prove he caused physical harm to Gillespie by 

means of a deadly weapon. 

{¶26} As we have often stated, the jury is free to accept or reject any or all of the 

testimonies of the witnesses. The jury obviously found Evelyn Robinson more credible 

than Appellant and his witnesses. 

{¶27} Based upon the foregoing and the entire record in this matter, we find 

Appellant’s conviction is neither against the manifest weight of the evidence or based 

upon insufficient evidence. 

{¶28} Appellant’s first assignment of error is overruled. 

II 

{¶29} In his second assignment of error, Appellant argues he was deprived of 

due process as the result of prosecutorial misconduct. 

{¶30} The test regarding prosecutorial misconduct in closing arguments is 

“whether the remarks were improper and, if so, whether they prejudicially affected 

substantial rights of the defendant.” State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 

N.E.2d 883; State v. Hessler (2000), 90 Ohio St.3d 108, 125, 734 N.E.2d 1237. 

{¶31} Specifically, Appellant takes issue with the prosecutor’s statement during 

closing arguments Appellant “punched [Gillespie] in the head and sent him to the 

hospital for weeks. Put him in a coma for weeks.” Appellant submits such statement 

was prejudicial because Gillespie was placed into a medically induced coma. Appellant 

also takes issue with the prosecutor’s statement the F.B.I. Fugitive Task Force was 

looking for him as the comment inferred Appellant was the subject of an F.B.I. 

investigation separate and apart from the instant action. 
Stark County, Case No. 2010CA00172 9

{¶32} Upon review of the record, we find the prosecutor’s statement regarding 

Appellant’s putting Gillespie into a coma for two weeks, while arguably a technical 

misstatement, did not result in prejudice sufficient to rise to the level of misconduct 

when taken in context with the entire closing argument. Further, the comment was 

factual as Gillespie was placed into a medically induced coma due to the injuries 

inflicted upon him by Appellant. 

{¶33} With respect to the statement regarding the F.B.I. involvement in locating 

Appellant after the incident, we find the prosecutor’s comments were not improper and 

Appellant was not prejudiced thereby. 

{¶34} Appellant’s second assignment of error is overruled. 

III 

{¶35} In his final assignment of error, Appellant raises a claim of ineffective 

assistance of trial counsel. 

{¶36} A claim of ineffective assistance of counsel requires a two-prong analysis. 

The first inquiry in whether counsel's performance fell below an objective standard of 

reasonable representation involving a substantial violation of any of defense counsel's 

essential duties to appellant. The second prong is whether the appellant was prejudiced 

by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, 

122 L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. 

{¶37} In determining whether counsel's representation fell below an objective 

standard of reasonableness, judicial scrutiny of counsel's performance must be highly 

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties 
Stark County, Case No. 2010CA00172 10

inherent in determining whether effective assistance of counsel was rendered in any 

given case, a strong presumption exists that counsel's conduct fell within the wide range 

of reasonable, professional assistance. Id.

{¶38} In order to warrant a reversal, the appellant must additionally show he was 

prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors 

were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable. 

Strickland 466 U.S. at 687, 694, 104 S.Ct. at 2064; 2068. The burden is upon the 

defendant to demonstrate that there is a reasonable probability that but for counsel's 

unprofessional errors, the result of the proceeding would have been different. Id.; 

Bradley, supra at syllabus paragraph three. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome. Strickland, supra; Bradley, supra. 

{¶39} The United States Supreme Court and the Ohio Supreme Court have held 

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. Accordingly, 

we will direct our attention to the second prong of the Strickland test. 

{¶40} Appellant asserts trial counsel was ineffective for failing to require the 

State to select one theory of its case as the Indictment charged Appellant with two 

different subsections of the felonious assault statute. We find Appellant is unable to 

satisfy either the first or the second prong of Strickland test. The evidence presented at 

trial was sufficient to convict Appellant under each subsection and we know of nothing 

that prevents the State from presenting alternative theories to support the indictment. 

We find the alternative theories presented herein are not inconsistent . 
Stark County, Case No. 2010CA00172 11

{¶41} Based upon the foregoing, Appellant’s third assignment of error is 

overruled. 

By: Hoffman, P.J. 

Wise, J. and 

Edwards, J. concur 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ John W. Wise _____________________

 HON. JOHN W. WISE 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS 

 
Stark County, Case No. 2010CA00172 12

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

DARRELL FRAZIER : 

 : 

 Defendant-Appellant : Case No. 2010CA00172 

 For the reasons stated in our accompanying Opinion, the judgment of the Stark 

County Court of Common Pleas is affirmed. Costs to Appellant. 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ John W. Wise______________________

 HON. JOHN W. WISE 

 s/ Julie A. Edwards___________________

 HON. JULIE A. EDWARDS