[Cite as State v. Wynn, 2017-Ohio-4062.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 103824 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ANTOINNE WYNN

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-595910-A 

 

BEFORE: E.A. Gallagher, P.J., Stewart, J., and Blackmon, J. 

RELEASED AND JOURNALIZED: June 1, 2017 
ATTORNEY FOR APPELLANT 

John H. Lawson 

The Brownhoist Building 

4403 St. Clair Avenue 

Cleveland, Ohio 44103 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Owen M. Patton 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, P.J.: 

{¶1} Defendant-appellant Antoinne Wynn appeals his felonious assault conviction 

in the Cuyahoga County Court of Common Pleas. The judgment of the trial court is 

affirmed. 

Facts and Procedural Background

{¶2} On May 26, 2015 Wynn was indicted for one count of felonious assault. 

The case proceeded to a jury trial with Wynn representing himself, pro se, until late in the 

trial when he chose to have standby counsel handle his case. The following facts were 

adduced at trial. 

{¶3} On May 10, 2015 Wynn and Ramona Roberts engaged in an argument 

outside the St. Andrew’s Towers apartments in Cleveland. Wynn and Roberts had been 

involved in a relationship that ended in April 2015. The argument culminated in 

Roberts throwing a hair product canister at Wynn’s feet. Roberts then entered the 

apartment complex and visited a friend on the sixth floor. She spent five minutes on the 

sixth floor before taking the stairs to the second floor where she was living with her 

friend, Amanaah Bass. Upon exiting the second floor stairwell, Roberts was attacked by 

Wynn who struck her several times in the face and head with his fists. Roberts suffered 

significant bleeding from a 5 cm laceration to her forehead and her right eye was swollen 

shut. The attack occurred at approximately 12:30 p.m. and ended with Roberts entering 

the second floor apartment she shared with Bass. Bass called 911 and Roberts was 

examined at the scene by responding emergency medical services personnel but she 
refused transport to a hospital. She eventually sought treatment at the Cleveland Clinic 

emergency room where she received seven stitches for the laceration to her forehead and 

she bore a scar at the time of trial. Responding police officers arrived at the scene by 

12:50 p.m., observed Roberts’ injuries and discovered a large amount of blood on the 

floor and on the wall near the second floor elevator where the incident occurred. The 

officers were unable to locate Wynn at St. Andrew’s Towers on May 10, 2015. 

{¶4} The jury returned a verdict of guilty to the charge of felonious assault in 

violation of R.C. 2903.11(A)(1). The trial court sentenced Wynn to a prison term of six 

years. 

Law and Analysis

I. Motion for Continuance

{¶5} In his first assignment of error, Wynn argues that the trial court erred in 

denying an oral motion for continuance made on the day of trial. 

{¶6} A determination of whether to grant or to deny a continuance is a matter left 

to the discretion of the trial judge, and an appellate court may not disturb the trial court’s 

ruling absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 

1078 (1981). “The term ‘abuse of discretion’ connotes more than an error of law or 

judgment; it implies that the court’s attitude is unreasonable, arbitrary or 

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 

(1983). 
{¶7} A reviewing court determines, on a case-by-case basis, whether the trial 

court’s denial of a continuance motion was so arbitrary as to deprive the defendant of due 

process, paying particular attention to the reasons presented to the trial judge at the time 

the request was denied. Unger at 67, citing Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 

11 L.Ed.2d 921 (1964). 

{¶8} In determining whether the trial court abused its discretion, an appellate court 

“weighs * * * any potential prejudice to a defendant [against] concerns such as a court’s 

right to control its own docket and the public’s interest in the prompt and efficient 

dispatch of justice.” Id. 

{¶9} The Unger court stated that, in evaluating a motion for a continuance, a court 

should consider: (1) the length of the delay requested; (2) whether other continuances 

have been requested and received; (3) the inconvenience to litigants, witnesses, opposing 

counsel and the court; (4) whether the requested delay is for legitimate reasons or whether 

it is dilatory, purposeful or contrived; (5) whether the defendant contributed to the 

circumstance that gives rise to the request for a continuance; (6) and other relevant 

factors, depending on the unique facts of each case. Id. at 67-68, citing United States v. 

Burton, 584 F.2d 485, 189 U.S. App. D.C. 327 (D.C.Cir.1978); Giacalone v. Lucas, 445 

F.2d 1238 (6th Cir.1971). 

{¶10} In this instance, Wynn moved for a continuance on the day of trial due to the 

fact that (1) he had been provided with the criminal history of Amanaah Bass on the 

morning of trial and (2) portions of security guard notes from St. Andrew’s Towers were 
redacted. The record reflects that Bass had no criminal history and we agree with the 

trial court’s assessment that a continuance was inappropriate as to that material. 

{¶11} In regards to the redacted discovery materials, the state represented to the 

trial court that the redacted portions were limited to personal information of individuals, 

including addresses and dates of birth, that were not associated with the case. Crim.R. 

16(F)(1) provides for in camera inspection of material designated “counsel only” for an 

abuse of discretion by the prosecuting attorney. However, pursuant to Crim.R. 16(F) 

and (M), a defendant is required to file a motion for such inspection no later than seven 

days prior to trial or three days after the opposing party provides discovery, whichever is 

later. In camera inspection did not occur in this instance because Wynn never filed a 

motion seeking review of the “counsel only” materials by the trial court under 

Crim.R.16(F)(1). The trial court retained discretion to strike Wynn’s last-minute request 

as untimely pursuant Crim.R. 16(M). State v. Blair, 3d Dist. Marion No. 9-12-14, 

2013-Ohio-646, ¶ 45. 

{¶12} Finally, for the first time on appeal Wynn argues that the state failed to 

disclose Cleveland police officer Matthew Nycz as a witness. However, Wynn did not 

make a motion for continuance with respect to Officer Nycz and the record reflects that 

the state disclosed to Wynn during a pretrial that it intended to call the arresting officer 

from his traffic stop and Wynn failed to object to Officer Nycz’s testimony. 

{¶13} In light of the above facts, we cannot say that the trial court abused its 

discretion in denying Wynn’s motion for a continuance. 
{¶14} Wynn’s first assignment of error is overruled. 

II. Motion to Dismiss 

{¶15} In his second assignment of error, Wynn argues that the trial court erred in 

denying a motion to dismiss the indictment due to the state’s failure to provide him with a 

preliminary hearing following his arrest on May 16, 2015. Wynn also argues that his 

motion to dismiss should have been granted because his indictment was defective. 

{¶16} We review a trial court’s decision on a motion to dismiss an indictment 

pursuant to a de novo standard of review. State v. Knox, 8th Dist. Cuyahoga Nos. 103662 

and 103664, 2016-Ohio-5519, ¶ 12, citing State v. Gaines, 193 Ohio App.3d 260, 

2011-Ohio-1475, 951 N.E.2d 814, ¶ 14 (12th Dist.). “De novo review requires an 

independent review of the trial court’s decision without any deference to the trial court’s 

determination.” Id., quoting State v. Clay, 2d Dist. Miami No. 2015-CA-17, 

2016-Ohio-424, ¶ 5. 

{¶17} Wynn’s argument that he was denied a preliminary hearing in violation of 

R.C. 2945.91 and Crim.R. 5(B) is without merit because he was indicted on May 26, 2015 

and a defendant’s right to a preliminary hearing is extinguished by the return of an 

indictment. State v. Jackson, 8th Dist. Cuyahoga Nos. 62671 and 62672, 1993 Ohio 

App. LEXIS 5347 (Nov. 10, 1993), citing State v. Pugh, 53 Ohio St.2d 153, 372 N.E.2d 

1351 (1978); Crim.R. 5(B)(1). 

{¶18} Wynn’s argument that the indictment was defective due to a lack of detail is 

also without merit. A felony defendant is entitled to an indictment disclosing the nature 
and cause of the accusation, which requires the state to set forth the material facts 

constituting the elements of the offense in order to afford the defendant adequate notice 

and opportunity to defend. State v. Bethea, 8th Dist. Cuyahoga No. 87088, 

2006-Ohio-4758, ¶ 12, citing State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 

(1985). R.C. 2941.05 provides: 

In an indictment or information charging an offense, each count shall 

contain, and is sufficient if it contains in substance, a statement that the 

accused has committed some public offense therein specified. Such 

statement may be made in ordinary and concise language without any 

technical averments or any allegations not essential to be proved. It may be 

in the words of the section of the Revised Code describing the offense or 

declaring the matter charged to be a public offense, or in any words 

sufficient to give the accused notice of the offense of which he is charged. 

{¶19} A review of Wynn’s indictment shows that it does, in fact, set forth 

sufficient material facts to comply with R.C. 2941.05 and survive a motion to dismiss. 

{¶20} Wynn’s second assignment of error is overruled. 

III. Jury Instructions on a Lesser Included Offense and an Inferior- Degree 

Offense 

{¶21} In his third assignment of error, Wynn argues that the trial court committed 

plain error in failing to provide jury instructions for the lesser included offense of assault 

and the inferior-degree offense of aggravated assault. 

{¶22} Wynn failed to object to the claimed error in the jury instructions at trial and 

has waived all but plain error. State v. Majid, 8th Dist. Cuyahoga No. 96855, 

2012-Ohio-1192, ¶ 72. Moreover, any error in the jury instructions is not plain error 

unless, but for the error, the outcome of the trial clearly would have been different. Id. 
{¶23} A charge on a lesser included offense is only required 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. Collins, 8th Dist. Cuyahoga No. 

95415, 2011-Ohio-3241, ¶ 35, citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 

(9th Dist.1988), paragraph two of the syllabus. The court must view the evidence in the 

light most favorable to the defendant when deciding whether to instruct the jury on a 

lesser included offense. State v. Campbell, 69 Ohio St.3d 38, 1994-Ohio-492, 630 N.E.2d 

339. An instruction is not warranted, however, every time “some evidence” is presented 

on a lesser included offense. State v. Smith, 8th Dist. Cuyahoga No. 90478, 

2009-Ohio-2244, ¶ 12, citing State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (5th 

Dist.1992). 

To require an instruction * * * 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. 

Id., quoting Shane at 633. 

{¶24} A trial court has discretion in determining whether the record contains 

sufficient evidentiary support to warrant a jury instruction on a lesser included offense; 

we will not reverse that determination absent an abuse of discretion. State v. Henderson, 

8th Dist. Cuyahoga No. 89377, 2008-Ohio-1631, ¶ 10, citing State v. Wright, 4th Dist. 

Scioto No. 01 CA2781, 2002-Ohio-1462. 

{¶25} Assault under R.C. 2903.13(A) is a lesser included offense of felonious 

assault under R.C. 2903.11. State v. Addison, 8th Dist. Cuyahoga No. 96514, 
2012-Ohio-260, ¶ 34, citing State v. Caster, 8th Dist. Cuyahoga No. 87783, 

2006-Ohio-6594. 

{¶26} Wynn argues that a jury could have reasonably found that (1) his actions 

resulted in physical harm rather than serious physical harm to the victim and (2) his 

actions were reckless as required by R.C. 2903.13(B), rather than knowingly as required 

by R.C. 2903.11(A). Therefore, Wynn argues, he was entitled to an instruction on the 

lesser included offense of assault. We disagree. 

{¶27} R.C. 2901.01(A)(5) defines “[s]erious physical harm to persons” as any of 

the following: 

(a) Any mental illness or condition of such gravity as would normally 

require hospitalization or prolonged psychiatric treatment; 

(b) Any physical harm that carries a substantial risk of death; 

(c) Any physical harm that involves some permanent incapacity, whether 

partial or total, or that involves some temporary, substantial incapacity; 

(d) Any physical harm that involves some permanent disfigurement or that 

involves some temporary, serious disfigurement; 

(e) Any physical harm that involves acute pain of such duration as to result 

in substantial suffering or that involves any degree of prolonged or 

intractable pain. 

{¶28} “This court has consistently held that the need for stitches constitutes serious 

physical harm for purposes of a felonious assault conviction.” State v. Studgions, 8th Dist. 

Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10; see State v. Williams, 8th Dist. Cuyahoga 
No. 98210, 2013-Ohio-573, ¶ 19 (observing that “[t]his court has repeatedly held that the 

element of serious physical harm is satisfied when the evidence shows that the victim 

sustained injuries requiring medical treatment, including stitches”). However, we noted in 

State v. Henry, 8th Dist. Cuyahoga No. 102634, 2016-Ohio-692, that, in most cases, it 

appears that it is not simply the fact that the victim received stitches that leads the court to 

conclude that the victim sustained “serious physical harm” within the meaning of R.C. 

2901.01(A)(5), but rather, the fact that, as is often the case with an injury requiring 

stitches, the injury and stitches led to a permanent scar or disfigurement. Id. at ¶ 42. 

Further, serious physical harm has been found where a victim sustains a bloody cut and/or 

significant swelling to the face, even where there is no evidence stitches were required. 

Id. at ¶ 42. 

{¶29} In this instance the record reflects that Roberts sustained a laceration to her 

forehead requiring seven stitches and resulting in a permanent scar. Furthermore, 

Roberts’ right eye was swollen shut for two weeks as a result of Wynn’s attack. These 

facts established that Roberts suffered serious physical harm. 

{¶30} In regards to the mens rea component, the testimony established that Wynn 

surprised Roberts as she exited the second floor stairwell and attacked her by punching 

her in and about the head and face several times. For the purposes of instructing on the 

appropriate assault offense, this court has held that a person acts “knowingly” as opposed 

to “recklessly” when he punches another person in the face. State v. Clark, 8th Dist. 

Cuyahoga No. 104076, 2016-Ohio-5143, ¶ 24. 
{¶31} Under these facts, we cannot say that the trial court committed plain error in 

failing to instruct on simple assault because a jury could not have reasonably found that 

Roberts suffered physical harm as opposed to serious physical harm or that Wynn acted 

recklessly in this instance. We next consider Wynn’s argument that the trial court 

committed plain error in failing to instruct the jury on aggravated assault. Aggravated 

assault is an “inferior degree” of the offense of felonious assault because the elements of 

the offense are identical except for the additional mitigating element of serious 

provocation. State v. Ruppart, 187 Ohio App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, 

¶ 25 (8th Dist.). In a trial for felonious assault, the jury instruction for aggravated assault 

must be given when the defendant presents sufficient mitigating evidence of serious 

provocation. State v. Blair, 8th Dist. Cuyahoga No. 76511, 2000 Ohio App. LEXIS 3046 

(July 6, 2000). 

{¶32} Serious provocation for aggravated assault is defined by R.C. 2903.12 as 

“the influence of sudden passion or [] a sudden fit of rage, either of which is brought on 

by serious provocation occasioned by the victim that is reasonably sufficient to incite the 

person into using deadly force.” Here, Wynn cites the fact that he and Roberts engaged 

in an argument outside the St. Andrew’s Towers apartments that resulted in Roberts 

throwing a hair product canister at Wynn’s feet. This act clearly does not satisfy the 

above definition of “serious provocation” sufficient to incite deadly force. 

{¶33} Furthermore, even if the interaction between Wynn and Roberts had 

amounted to a serious provocation, after the initial confrontation Roberts had time to 
travel to the sixth floor of the apartment building, spend five minutes visiting with her 

friend and then take the stairs back down to the second floor before she was attacked by 

Wynn. Under these circumstances, Wynn had a sufficient time for any heat of passion 

from the argument to cool. See, e.g., State v. Hunt, 8th Dist. Cuyahoga No.43822, 1982 

Ohio App. LEXIS 15415 (Mar. 18, 1982) (holding that break in time between an 

argument and an offense provided the defendant with an “opportunity to cool”). 

{¶34} We find no plain error in the trial court’s failure to include a jury instruction 

on aggravated assault. 

{¶35} Wynn’s third assignment of error is overruled. 

IV. Testimony Regarding Wynn’s Arrest 

{¶36} In his fourth assignment of error, Wynn argues that the trial court erred in 

allowing the state to introduce the testimony of Cleveland police officer Matthew Nycz 

who described pulling over a vehicle with four men on May 16, 2015. All four men fled 

from the vehicle, Nycz apprehended Wynn and Wynn provided him with a false name. 

The trial court excluded from Nycz’s testimony the fact that drugs were found in the 

vehicle. 

{¶37} Wynn objected to Nycz’s testimony and the state conceded that the 

testimony was not relevant to a potential act of flight in the present case. The state 

explained that it did not know why Wynn fled from the vehicle and it instead intended to 

use his departure from the scene of the offense on May 10 to support a flight instruction. 

Nonetheless, the trial court overruled Wynn’s objection reasoning that (1) the jury 
deserved an explanation of how Wynn came to be in custody, (2) Wynn could explain that 

he fled the car due to the presence of drugs as opposed to a potential arrest relating to the 

assault and (3) Wynn waived any objection to the testimony by failing to object during 

opening statements. 

{¶38} “The admission of evidence lies within the broad discretion of a trial court, 

and a reviewing court should not disturb evidentiary decisions in the absence of an abuse 

of discretion that has created material prejudice.” State v. Noling, 98 Ohio St.3d 44, 

2002-Ohio-7044, 781 N.E.2d 88, ¶ 43, citing State v. Issa, 93 Ohio St.3d 49, 64, 

2001-Ohio-1290, 752 N.E.2d 904. Within this broad discretion is the trial court’s duty “to 

determine whether testimony is relevant and to balance its potential probative value 

against the danger of unfair prejudice.” State v. Clark, 8th Dist. Cuyahoga No. 95928, 

2011-Ohio-4109, ¶ 32. Evid.R. 402 allows the admission of any relevant evidence so 

long as the probative value of that evidence is not outweighed by its prejudicial effect, it 

does not confuse the issue or mislead the jury. Evid.R. 403(A). Our inquiry is limited to 

whether the trial court acted unreasonably, arbitrarily or unconscionably in deciding to 

exclude the testimony. 

{¶39} In this instance, we find no relevance in the testimony of Officer Nycz to the 

charge of felonious assault in light of the state’s concession that the testimony was not 

offered to support a flight instruction. We are unaware of any authority to support the 

trial court’s conclusion that Wynn’s failure to object to statements made by the state 

during opening arguments, which are not evidence, waived his ability to object to 
testimony during trial. We do not see that the manner of Wynn’s arrest was relevant to 

the underlying charges. The reasoning that Wynn could simply raise the presence of 

drugs to explain his flight from the vehicle turns Evid.R. 403 on its head in light of the de 

minimis relevancy of Officer Nycz’s testimony. 

{¶40} This does not, however, end our inquiry. Although we find that Officer 

Nycz’s testimony should have been excluded because it lacked relevance, we apply the 

nonconstitutional harmless-error analysis to evidentiary errors such as this. State v. 

Mims, 8th Dist. Cuyahoga No. 100520, 2014-Ohio-5338, ¶ 60; State v. Bell, 8th Dist. 

Cuyahoga No. 97123, 2012-Ohio-2624, ¶ 59. Pursuant to Crim.R. 52(A) any error, 

defect, irregularity or variance that does not affect a substantial right will be disregarded. 

A nonconstitutional error is harmless when there is substantial other evidence to support 

the guilty verdict. Id. 

{¶41} In this instance, the state presented substantial evidence to support the guilty 

verdict. Disregarding Officer Nycz’s testimony, we find that the record contains 

overwhelming evidence to support Wynn’s conviction. For this reason, we find that the 

trial court’s error in admitting the testimony in question was harmless. 

{¶42} Wynn’s fourth assignment of error is overruled. 

V. Sufficiency of the Evidence 

{¶43} In his fifth assignment of error, Wynn challenges the sufficiency of the 

evidence supporting his conviction for felonious assault under R.C. 2903.11(A)(1). 
{¶44} A challenge to the sufficiency of the evidence supporting a conviction 

requires a determination of whether the state has met its burden of production at trial. 

State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. 

Thompkins, 78 Ohio St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541. When reviewing 

sufficiency of the evidence, an appellate court must determine “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. 

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. 

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a 

sufficiency inquiry, an appellate court does not assess whether the state’s evidence is to 

be believed but whether, if believed, the evidence admitted at trial supported the 

conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing 

Thompkins at 387; Jenks at paragraph two of the syllabus. 

{¶45} Wynn reiterates the same arguments he presented in his third assignment of 

error — that evidence was not presented establishing that he caused serious physical 

harm or acted “knowingly.” For the same reasons set forth as to the third assignment of 

error, we reject his arguments. 

{¶46} Wynn’s fifth assignment of error is overruled. 

VI. Manifest Weight 

{¶47} In his sixth assignment of error, Wynn argues that his conviction was 

against the manifest weight of the evidence. 
{¶48} A manifest weight challenge attacks the credibility of the evidence 

presented and questions whether the state met its burden of persuasion at trial. State v. 

Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 

Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541; State v. Bowden, 8th Dist. 

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. Because it is a broader review, a reviewing 

court may determine that a judgment of a trial court is sustained by sufficient evidence, 

but nevertheless conclude that the judgment is against the weight of the evidence. 

{¶49} ‘“When considering an appellant’s claim that a conviction is against the 

manifest weight of the evidence, the court of appeals sits as a “thirteenth juror” and may 

disagree with the factfinder’s resolution of conflicting testimony.’” Thompkins at 387, 

quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The 

reviewing court must examine the entire record, weigh the evidence and all reasonable 

inferences, consider the witnesses’ credibility, 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 conviction must be reversed and a new trial ordered. 

Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st 

Dist.1983). In conducting such a review, this court remains mindful that the credibility of 

witnesses and the weight of the evidence are matters primarily for the trier of fact to 

assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and 

two of the syllabus. Reversal on manifest weight grounds is reserved for the “exceptional 
case in which the evidence weighs heavily against the conviction.” Thompkins at 387, 

quoting Martin, supra. 

{¶50} Wynn argues solely that the victim’s testimony was not credible because she 

offered inconsistent statements regarding when she initially became acquainted with him. 

 Wynn also cites her drug and alcohol use. We do not agree with Wynn’s assessment of 

the credibility of Roberts’ testimony. We cannot say that the jury clearly lost its way and 

created a manifest miscarriage of justice when it chose to believe her testimony regarding 

the assault. 

VII. Authentication of the State’s Photograph Exhibits 

{¶51} In his seventh assignment of error, Wynn argues that the trial court erred by 

overruling his objection to the admission of several photograph exhibits offered by the 

state. 

{¶52} We again apply an abuse of discretion standard to the trial court’s decision 

to admit evidence. Pursuant to Evid.R. 901(A), authentication is satisfied by “evidence 

sufficient to support a finding that the matter in question is what its proponent claims.” 

Any person with knowledge may authenticate a photograph by testifying that it fairly and 

accurately depicts the subject at the time the photograph was taken. State v. Wynn, 5th 

Dist. Stark No. 2011CA00244, 2012-Ohio-3430, ¶ 39, citing State v. Hannah, 54 Ohio 

St.2d 84, 88, 374 N.E.2d 1359 (1978). 

{¶53} In this instance, the state introduced 22 photographs and asked Roberts if 

she generally recognized them. Roberts indicated that she recognized all of them and 
stated they were photographs depicting the exterior and interior of the apartment building, 

her face, blood and her apartment. She further testified that the pictures were fair and 

accurate representations of how it looked the day of the incident. The state then 

questioned her regarding the individual photos. On appeal, the state concedes that some 

of the photograph exhibits were not specifically addressed by Roberts in her testimony. 

The record reflects that Roberts did not specifically discuss and individually identify what 

was depicted in the photographs marked as exhibit Nos. 10, 12, 17, 18, 19, 20 and 21. 

Wynn objected to their admission for this reason but the trial court overruled the 

objection. 

{¶54} While we find that the trial court erred in admitting the photographs that 

were not individually identified, we find any error to be harmless in light of the fact that 

the photographs that were not specifically discussed depicted material that was 

duplicative of other properly admitted photographs. 

{¶55} Wynn’s seventh assignment of error is overruled. 

VIII. Flight Instruction 

{¶56} In his eighth assignment of error, Wynn argues that the trial court erred by 

overruling his objection to a flight instruction. 

{¶57} “A trial court should give a proposed jury instruction if it is a correct 

statement of the law and is applicable to the facts of the particular case.” State v. Rose, 

8th Dist. Cuyahoga No. 89457, 2008-Ohio-1262, ¶ 18. “Flight from justice means some 

escape or affirmative attempt to avoid apprehension.” State v. Wesley, 8th Dist. Cuyahoga 
No. 80684, 2002-Ohio-4429, ¶ 19. Flight is more than merely leaving the scene of a crime 

— it would be unrealistic to expect persons who commit crimes to remain on the scene 

for ready apprehension. State v. Santiago, 8th Dist. Cuyahoga No. 95516, 

2011-Ohio-3058, ¶ 30. Flight in this context requires the defendant to appreciate that he 

has been identified as a person of interest in a criminal offense and is taking active 

measures to avoid being found. State v. Ramos, 8th Dist. Cuyahoga No. 103596, 

2016-Ohio-7685, ¶ 28. The trier of fact may infer that such circumstances show that the 

defendant is avoiding the police only because he knows that he is guilty and wishes to 

avoid the inevitable consequences of his crime. Id. The court has discretion to decide 

whether to issue an instruction on flight. State v. Hill, 8th Dist. Cuyahoga No. 98366, 

2013-Ohio-578, ¶ 48. A trial court does not abuse its discretion by issuing an instruction 

on flight if sufficient evidence exists in the record to support the charge. Id. at ¶ 49. 

{¶58} We find that the trial court abused its discretion in providing a flight 

instruction in this case. The state argues that a flight instruction was appropriate due to 

the fact that Wynn did not remain at the scene of the alleged offense until police arrived. 

However, there is no evidence in the record to demonstrate that Wynn appreciated that he 

had been identified as a person of interest in a criminal offense and actively took 

measures to avoid being found. Leaving the scene of the crime is not the same as 

actively avoiding detection. 

{¶59} However, we find the error to be harmless in this instance because it did not 

change the underlying facts of the case which, with or without the instruction, 
fundamentally required that the jury accept Roberts’ identification of Wynn as her 

attacker. See, e.g., State v. Hoston, 8th Dist. Cuyahoga No. 102730, 2015-Ohio-5422, 

¶ 33. 

{¶60} Wynn’s eighth assignment of error is overruled. 

{¶61} The judgment of the trial court is affirmed. 

It is ordered that appellee recover from appellant the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

______________________________________________ 

EILEEN A. GALLAGHER, PRESIDING JUDGE 

MELODY J. STEWART, J., and 

PATRICIA ANN BLACKMON, J., CONCUR