[Cite as State v. Grimes , 2020-Ohio-4357.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsBRANDON A. GRIMES Defendant-Appellant JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2019CA0103 : : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland Coun ty Court of Common Pleas, Case No. 2018CR1053 JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 4, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant GARY D. BISHOP APRIL F. CAMPBELL Prosecutor 545 Metro Place South, Ste.100 By: JOSEPH C. SNYDER Dublin, OH 43017 Assistant Prosecutor 38 South Park Street Mansfield, OH 44902[Cite as State v. Grimes , 2020-Ohio-4357.]
Gwin, P.J. {¶1} Appellant Brandon Grimes appeals from the August 20, 2019 and November 1, 2019 judgment entries of the Richland County Court of Common Pleas. Appellee is the State of Ohio. Facts & Procedural History {¶2} On December 11, 2018, appellant was charged with three counts o f felonious assault in violation of R.C. 2903.11(A)(2), three cou nts of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), three counts of aggravated vehicular assault in violation of R.C 2903.08(A)(2)(b), one count of operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), and one count of operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(d). {¶3} Appellee dismissed the three aggravated vehicular assault count s based upon R.C. 2903.08(A)(2)(b) and the OVI count based upon R.C. 45 11.19(A)(1)(a). Appellant pled guilty to one count of OVI, a violation of R.C. 4511.19(A)(1)(d). Appellant waived his right to a jury trial. The trial court conducted a bench trial on July 30, 2019 for three counts of felonious assault and three counts of aggravate d vehicular assault. {¶4} Ty’asiyah Osborne (“Osborne”) was with Jada Barrett (“Barrett’) and Jacqueline Burden (“Burden”) the night of November 6, 2018, whe n she picked Burden up from work at Richland Mall at approximately 10:00 p.m. En r oute to picking up Burden’s daughter from the babysitter and while Osborne was dri ving Burden’s Toyota Camry, Osborne noticed a black car, without its lights on, driv ing recklessly towards them. Osborne initially thought nothing of it, but pulled into the dr iveway of the babysitter’s house on Hillside Circle. Osborne identified the car as appellant’s black Impala; however,Richland County, Case No. 2019CA0103 3 Osborne did not know appellant prior to the incident. The Impa la backed up and parked directly behind the bumper of the Camry. Osborne saw two indiv iduals in the car and observed one of the individuals reaching for something. Osborn e stated she was scared because she did not know who the person in the Impala was or wh at they could be reaching for. Osborne then pulled forward and drove through th e neighbor’s grass in order to get away from the Impala. As she pulled onto the stre et, the black Impala “came up beside us, bumping us, like smacking our car.” Osborne test ified the Impala hit or “rammed” the side of the Camry three or four times. Burden cal led 9-1-1 while the Impala was hitting the Camry. When listening to the 9-1-1 call, Osbor ne stated the thuds heard in the background were the Impala hitting the Camry. {¶5} The Impala never tried to pass to get around her and Osborne fe lt it was chasing them. Osborne made two turns in an attempt to escape, but she inadvertently went down a “no outlet” street as the Impala continued to follo w. Osborne then drove through mud that splashed the Camry. As Osborne was attempting to get away from the Impala, a blue pickup truck was in front of her. The truck was going slow and, in her attempt to pass the truck, she hit the truck. However, there w as no damage to the truck or the Camry from her hitting the truck. Also, as she was tryi ng to get away from the Impala, Osborne hit a sign, causing damage to the front windshi eld of the Camry. Osborne identified damage to the side of the Camry as being fro m the Impala hitting the car and identified several transfers of black paint from the Im pala onto the Camry. {¶6} Osborne testified she was not hurt the night of the accident, b ut when she got out of the car, she fell to the ground and vomited. She ex perienced neck, back, and head pain after the accident. She went to the hospital two or three times due to the painRichland County, Case No. 2019CA0103 4 in her head, but was not discharged with any medication. Osbor ne sought treatment from a chiropractor for her neck and back as a result of the inciden t, and she reported her pain as a 10 out of 10. Osborne still experiences pain in her back that she did not have prior to the accident. On cross-examination, Osborne testified she d id not call the chiropractor until a medical provider reached out to her the day after the a ccident to ask if she was injured. Osborne stopped going to the chiropractor after sever al visits because of her
pregnancy. {¶7} Barrett testified she was in the back seat of the Camry on Nove mber 6, 2018. While sitting in the babysitter’s driveway, a black Impa la rammed towards the Camry. At first, Barrett was not concerned because she thought it was a drunk driver. After the Impala pulled behind them, Barrett got scared because the Impala was following them. Barrett never saw the Impala hit them because she put he r head down, but she felt the Impala hit the Camry three times. Barrett believes th ey briefly sideswiped a blue truck, and then crashed into a sign to get away from the Impala . After the incident, Barrett had a little bit of back pain starting a few weeks after the ac cident and lasting for a few months. {¶8} Burden testified she owns the 2004 Toyota Camry that Osborne wa s driving the night of November 6, 2018. Burden was seated in the passen ger seat of the vehicle. Burden noticed a black Impala backing up on the roadway, which she thought was “really weird.” Burden thought the driver of the Impala was drunk beca use it had no headlights on, was coming at them, and went into the grass like it was goi ng to hit them. As they sat in the driveway, the Impala reversed and pulled in right behind them, getting so close to the Camry that Osborne could not back up. They tried to get aw ay from the Impala byRichland County, Case No. 2019CA0103 5 going through the neighbor’s yard and made several turns. Howe ver, the Impala continued to chase them. Burden testified the Impala tried to r un them off the road multiple times. {¶9} Burden first testified that she could not remember whether the Impala hit the Camry, but knew it was “really really close.” However, whe n Burden later described how the Impala was chasing them and following them, she stated “it had multiple opportunities to pass us and it s till wouldn’t stop chasing us and stop trying to follow us and basically hit us.” Burden continued, “when it got up to th e side of the car, it started bumping the car off the road.” Burden then confirmed there was an impact between the Impala and her Camry on the passenger’s side, but could not rem ember if the Impala hit the driver’s side of the Camry. Burden felt the actions of the driver of the Impala were intentional because the Impala was hitting the car and would no t stop chasing them. {¶10} Burden called 9-1-1 during the incident. When the 9-1-1 call w as played in court, Burden was upset, “because I really thought we were goin g to die.” Burden identified on the 9-1-1- call the “thuds” where the Impala stru ck the Camry. {¶11} Burden stated that, in the process of trying to get away from t he Impala, Osborne lightly swiped a blue truck, but with a significantly l ess impact than the impact from the Impala. After they got around the blue truck, Osborne ran into a sign. {¶12} Burden had never met appellant before. Burden identified the I mpala in a photograph. Burden also identified a photograph depicting dama ge on the passenger door of her Camry and testified that, prior to November 6, 2018 , the Camry did not have the damage. Burden stated the damage to the front of her Camry was from OsborneRichland County, Case No. 2019CA0103 6 hitting the sign. Burden went to the chiropractor for her neck and back pain after Dr. Simpson’s office reached out to her. {¶13} Ashley Buckley (“Buckley”) is appellant’s ex-girlfriend. In 20 18, Buckley helped appellant purchase a dark brown Chevy Impala that he pai d for and she put in her name. As of September of 2018, the Impala was not damaged. Th e night of the incident, appellant called Buckley and told her he was in an accident wit h a blue truck. When Buckley saw the Impala and blue truck the day after the acciden t, there was barely any damage to the blue truck and a lot of damage to appellant’s car

. {¶14} Officer Larry Schacherer (“Schacherer”) of the City of Mansfiel d Police, was dispatched on November 6, 2018, and found the Impala and blue t ruck at the scene. When Schacherer made contact with appellant, he noticed an odor of alcohol and his eyes were bloodshot and glassy. Appellant did not seem agitate d or angry when Schacherer made contact with him. Schacherer attempted to elic it a statement from appellant’s passengers, but they would not speak to him. After Schacherer found out about the involvement of the Camry, appellant denied knowing an ything about the Camry. Schacherer issued appellant a citation for OVI. {¶15} Officer Scott Kotterman (“Kotterman”) of the Mansfield Police D epartment was dispatched via the 9-1-1- call. It was initially unclear t hat the Camry and Impala/blue truck incidents were related. Kotterman made contact with the three individuals in the Camry. Kotterman described them as “visibly shaken” and “scare d.” The driver and passengers in the Camry reported to Kotterman that they were fo llowed aggressively, the Camry was hit several times, and they felt the Impala was tryin g to kill them.Richland County, Case No. 2019CA0103 7
{¶16} Kotterman noted black marks that indicated the Impala hit the C amry and found that the area of damage on the Camry was of comparable he ight to the damage on the Impala. The damage between the Camry and Impala was consis tent with a side-byside impact. He also noted there was mud on both the Camry and Impala. Kotterman stated the damage on the door of the Impala was not consistent with hitting the blue truck, as there was significant damage to appellant’s radiator grill, which Kotterman believes would not have occurred from rear-ending the blue truck, as the front of the Impala would have gone underneath the truck. Kotterman could not physically prove how many impacts there were between the Impala and the Camry. Kotterman does no t believe the blue truck caused the damage to the Camry because the driver’s side of the blue truck was not damaged. Rather, Kotterman thinks the front bumper portion of the Impala struck the passenger side of the Camry. Kotterman identified multiple pho tographs that he took of the scene and also multiple photographs he took of the Impala, Camry, and blue truck. {¶17} Kotterman testified that he compiled two separate reports relat ing to his investigation, one relating to traffic, and the other relating to felonious assault. {¶18} Based upon Kotterman’s conversations with the girls, he noted i n his report that there were no injuries. He did not observe any physical i njuries. However, Kotterman testified that many times injuries are not known until days or weeks after an accident. {¶19} Tontoh Simpson (“Simpson”), a chiropractor, testified it is com mon that someone who is injured in a car accident may not immediately kn ow it. Simpson has a marketing group that contacts individuals after they are involv ed in a car accident. Simpson treated Burden in November of 2018 and diagnosed her wi th a sprain of the cervical spine, thoracic spine, lumbar spine and fixation/locki ng of the spine at the neck,Richland County, Case No. 2019CA0103 8 mid-back, and low back. Simpson testified that Burden’s injury could reasonably be the result of being involved in a car crash, including being sidesw iped. Simpson saw Burden until the end of November, but she did not complete her treatme nt plan. {¶20} Simpson diagnosed Osborne with sprains of the ligaments of the cervical, lumbar, and thoracic spine, and segmental dysfunction of the ce rvical, thoracic, and lumbar spine. Osborne also had right arm weakness. Osborne sa w Simpson several times, but did not complete her treatment plan. {¶21} Appellant testified as to the incident on November 6, 2018. Ap pellant stated he was taking a friend to the Hillside Circle Apartments. The friend ran back into the apartment to grab something and came back out. They then left and drove around the bend. Appellant did not notice any other cars around. Appella nt admitted he was drunk and was driving a little reckless. When he turned onto Woodvil le, appellant saw a car in front of him and attempted to pass the car. However, due to an oncoming car, he hit his brakes and fell back into line. Appellant stated he “may have sideswiped the car,” but did not know, as he did not feel any impact. All appellant could r emember was seeing brake lights, and then the impact with the blue truck. It was not ap pellant’s intent to do any harm to anyone that night. {¶22} On cross-examination, appellant testified that when he said he was driving “aggressively,” he meant he was driving fast, making hard turns , music up, and drunk driving. Appellant could not remember whether he hit the car w hen trying to pass it. {¶23} The trial court issued a judgment entry on August 20, 2019. Th e court stated, “the court concludes that a motor vehicle can be used a s a deadl y w eapon and that the defendant did knowingly cause injury to both victims O sborne and Burden andRichland County, Case No. 2019CA0103 9 attempted to cause physical harm to victim Barrett.” As to agg ravated vehicular assault, the trial court found appellant was driving a motor vehicle whi le under the influence of alcohol, and did cause serious physical harm to victims Osborne and Burden, but not to victim Barrett. The trial court thus found appellant guilty of Counts 1, 2, 3, 4, and 5, and not guilty as to Count 6. The court merged Counts 1 and 4, as well as Counts 2 and 5, for sentencing. The trial court ordered a pre-sentence investi gation and issued a sentencing entry on November 1, 2019. Appellant was sentenced to three years on Counts One, Two, and Three, to be served consecutively to one a nother. Counts Four and Five merged with Counts One and Two. Appellant was also se ntenced to one month on Count Eleven, to be served concurrently with the remainder o f his sentence. {¶24} Appellant appeals the August 20, 2019 and November 1, 2019 judg ment entries of the Richland County Court of Common Pleas and assign s the following as error: {¶25} “I. THE STATE’S EVIDENCE THAT GRIMES COMMITTED THREE COUNTS OF FELONIOUS ASSAULT AND TWO COUNTS OF AGGRAVATED VEHICULAR ASSAULT WAS LEGALLY INSU FFICIENT AS A MATTER OF LAW. {¶26} “II. GRIMES’ CONVICTIONS SHOU LD BE REVERSED B ECAUSE HIS TRIAL COUNSEL WAS INEFFECTIVE IN A MANNER THAT PREJUDICED GRIME S. {¶27} “III.THE TRIAL COURT’S DECISION TO FIND GRIMES GUILTY OF COUNTS ONE THROUGH FIVE OF GRI MES’S INDICTMENT SHOULD BE REVERSED, BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING GRIMES OF EACH COUNT. {¶28} “IV. IMPROPER HEARSAY TESTIMONY ADMITTED AT GRIMES’ TRIAL DENIED GRIMES HIS RIGHT TO A FAIR ONE.Richland County, Case No. 2019CA0103 10
{¶29} “V. GRIMES WAS DENIED HIS RIGHT TO A FAIR TRIAL THROUGH CUMULATIVE ERROR.” {¶30} For ease of discussion, we will address appellant’s arguments o ut of
sequence. I. {¶31} In his first assignment of error, appellant argues the decision of the trial court was against the sufficiency of the evidence. {¶32} The standard of review for a challenge to the sufficiency of th e evidence is set forth in State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), in which the Ohio Supreme Court held, “an appellate court’s function when reviewi ng the sufficiency of the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would convince th e average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inqu iry is whether, after viewing the evidence in a light most favorable to the prosecuti on, any rational trier of fact could have found the essential elements of the crime proven bey ond a reasonable doubt.” {¶33} Appellant was convicted of R.C. 2903.11(A)(2), which provides, “(A) No person shall knowingly do either of the following: * * * (2) Ca use or attempt to cause physical harm to another * * * by means of a deadly weapon or d angerous ordnance.” {¶34} Appellant was also convicted of R.C. 2903.08(A)(1)(a), which pr ovides that “no person, while operating or participating in the operation o f a motor vehicle * * * shall cause serious physical harm to another person * * * (1)(a) as t he proximate cause of committing a violation of division (A) of section 4511.19 of th e Revised Code * * *.”Richland County, Case No. 2019CA0103 11
{¶35} Appellant cites four specific reasons as to why his convictions are against the sufficiency of the evidence. {¶36} First, appellant contends appellee’s evidence of felonious assa ult is not sufficient because appellee presented only circumstantial evide nce of intent that was insufficient to overcome appellant’s testimony about intent. A ppellant believes that since none of parties in this case knew each other, the trial court c ommitted error in disregarding Grimes’ testimony that it was not his intent to do any harm to anyone that night. {¶37} We disagree with appellant. Appellant’s argument focuses exclu sively on the credibility of the witnesses and the evidence. However, as the trier of fact, the court was free to accept or reject any and all of the evidence offere d by the parties and assess the witness’s credibility. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “While a trier of fact may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant’ s conviction against the * * * sufficiency of the evidence.” State v. Craig , 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar. 23, 2000). As an appellate court, we neither we igh the evidence nor judge the credibility of the witnesses. State v. Mills , 62 Ohio St.3d 357, 582 N.E.2d 972 (1992). {¶38} Although the evidence may have been circumstantial, circumstant ial evidence and direct evidence inherently possess the same probat ive value. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by State constitutional amendment on other grounds as stated in State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Simply because appellant testified that he did not intend to harm anyone that night does not mean his convictions for felonious assault are i nsufficient.Richland County, Case No. 2019CA0103 12
{¶39} Second, appellant avers the evidence that he knowingly used his vehicle as a deadly weapon was insufficient to sustain the felonious assau lt convictions because the trial court stated in its judgment entry that a motor vehicle “ can” be used as a deadly weapon, but did not specifically find that appellant actually u sed the vehicle as a deadly weapon. We disagree with appellant’s characterization of the l anguage in the trial court’s judgment entry. The language in the entry does not equate to a finding that the Impala was not a deadly weapon. The trial court’s statement that a “m otor vehicle can be used as a deadly weapon” comports with the law of this district that “an automobile can be classified as a deadly weapon when used in a manner likely to p roduce death or great bodily harm.” State v. Taylor , 5th Dist. Delaware No. 12CAA020007, 2012-Ohio-5029. The question of whether an automobile is used as a deadly weapo n is a question for the trier of fact. Id. {¶40} The trial court then found that appellant knowingly caused inju ries to Osborne and Burden, and attempted to cause physical harm to Bar rett. The trial court concluded, “the Court finds defendant guilty of Counts 1, 2, 3 * * *.” Since this was a trial to the bench, the trial court was permitted to make a general f inding, i.e., guilty or not guilty. Criminal Rule 23(C); State v. Lantz, 5th Dist. Fairfield No. 01 CA 38, 2002-Ohio3838. Thus, a specific finding as to every element of the offe nse is not required. Id . The trial court’s judgment entry as to Counts 1, 2, and 3 was suffi cient. {¶41} Third, appellant avers there was insufficient evidence for the felonious assault convictions because a reasonable person could not have found beyond a reasonable doubt that the victims sustained physical harm. Phy sical harm is defined asRichland County, Case No. 2019CA0103 13 “any injury, illness, or other physiological impairment, regard less of its gravity or duration.” R.C. 2901.01(A)(3). {¶42} We disagree. Osborne testified she fell to the ground and vomi ted on the night of the incident. She also experienced neck, back, and he ad pain after the incident and went to the hospital two or three times for head pain. Osb orne still experiences back pain. Burden stated she went to the chiropractor for back and neck pain. Simpson testified that: Burden had a sprain of several portions of her spine and locking of the spine; and Osborne had a sprain of several ligaments in her spi ne, right arm weakness, and segmental dysfunction of the spine. Viewing the evidence i n a light most favorable to the prosecution, we conclude appellee produced sufficient ev idence upon which the trier of fact could find that appellant caused harm to the vict ims within the meaning of R.C. 2901.01(A)(3). {¶43} Finally, appellant contends there was insufficient evidence tha t he caused either physical harm or serious physical harm to Osborne, Barre tt, or Burden, as any injuries were not directly attributable to appellant’s vehicle hitting them. Rather, appellant argues any injuries were caused by: Osborne striking a car on Hillside prior to the Impala hitting the Camry; Osborne running into the blue truck; and Osb orne hitting the traffic sign. {¶44} We first note that there is no evidence or testimony that Osbor ne struck a vehicle prior to when the Impala started chasing and hitting th e Camry. {¶45} Osborne testified that as she was attempting to get away from t he Impala, she hit the blue truck; however, there was no damage to the tru ck. Osborne then hit a sign with the front of the car in an attempt to evade the Impal a. Both Barrett and Burden testified that Osborne “lightly swiped” the blue truck and hit a sign in an attempt to getRichland County, Case No. 2019CA0103 14 away from the Impala. Kotterman stated that, based upon his in vestigation, he does not believe there was any damage to the Camry or the blue truck fro m where the Camry sideswiped the truck. {¶46} The requisite mental state for felonious assault is “knowingly, ” which 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 p robably be of a certain nature. A person has knowledge of circumstances when he is aware that s uch circumstances probably exist.” R.C. 2901.22(B). It is well-established that one may be presumed to intend results which are the natural, reasonable, and probable consequences of his voluntary actions. State v. Farmer , 156 Ohio St. 214, 102 N.E.2d 11 (1951). Further, “it is not necessary that the accused be in a position to foresee t he precise consequence of his conduct, only that the consequence be foreseeable in the se nse that what actually transpired was natural and logical in that it was within the sc ope of the risk created by his conduct.” State v. Wilson , 5th Dist. Richland No. 13CA39, 2014-Ohio-41, quoting State v. Losey , 23 Ohio App.3d 93, 491 N.E.2d 379 (10th Dist. 1995). {¶47} Even assuming the injuries of Osborne and Burden occurred when the Camry sideswiped the blue truck or hit the sign in an attempt t o escape the Impala, these injuries are a reasonably foreseeable result of appellant’s act ions. Appellant may not have foreseen the precise injuries the victims would sustain as a result of his actions, but the injuries caused by their escape were within the scope of th e risk created by his conduct. State v. Lett , 8th Dist. Cuyahoga No. 106973, 2019-Ohio-532. The injuries were a natural and logical outcome of his ramming the Impala in to the Camry and the injuries were neither extraordinary or surprising. State v. Gibson , 5th Dist. Stark No.Richland County, Case No. 2019CA0103 15
2013CA00183, 2014-Ohio-2352; State v. Barron , 5th Dist. Perry No. 05-CA-4, 2005-Ohio6108 (finding appellant set in motion a sequence of events by c hasing a vehicle, the foreseeable consequence of which should have been known to appe llant); State v. Sess , 12th Dist. Butler No. CA2015-06-117, 2016-Ohio-5560 (finding “i t is of no consequence that appellant did not specifically intend to cause injuries to the officers and his main goal was to get away”). Therefore, there was sufficient evidence th at appellant knowingly caused physical harm to Osborne and Burden by means of the Impa la, a deadly weapon. {¶48} The trial court found appellant attempted to cause physical har m to Barrett in violation of R.C. 2903.11 (“attempt to cause physical harm t o another * * * by means of a deadly weapon * * *). We find the evidence supports the tria l court’s conclusion that appellant was or should have been aware his actions would proba bly result in harm to Barrett under the totality of the circumstances. State v. Taylor , 5th Dist. Delaware No. 12CAA020007, 2012-Ohio-5029 (even though appellant testified th at he did not attempt to cause physical harm, but accidentally bumped into the victim ’s car, the evidence supports the trial court’s conclusion appellant was or should h ave been aware his actions would probably result in harm to the victim and the trial court ’s decision was supported by sufficient evidence); State v. Kilton , 8th Dist. Cuyahoga No. 80837, 2003-Ohio-423 (convictions not against the sufficiency of the evidence when a ppellant continued to bump the victim’s vehicle). Therefore, there was sufficient evidenc e that appellant knowingly attempted to cause physical harm to Barrett by means of the Imp ala, a deadly weapon. {¶49} As to the two counts of aggravated vehicular assault, the quest ion is whether the violation of R.C. 4511.19 was the proximate cause o f the serious physical harm to Osborne and Burden. It is well-established that the de finition of “cause” inRichland County, Case No. 2019CA0103 16 criminal cases is identical to the definition of “proximate cau se” in civil cases. State v. Dunham , 5th Dist. Richland No. 13CA26, 2014-Ohio-1042. The general r ule is that a defendant’s conduct is the proximate cause of injury to another if the defendant’s conduct (1) is a “substantial factor” in bringing about the harm and (2 ) there is no other rule of law relieving the defendant of liability. Id. Viewing the evidence in a light most favorable to the prosecution, we find a rational trier of fact could have fo und, beyond a reasonable doubt, that appellant’s conduct of ramming the Impala into the Camry was a substantial factor in bringing about Osborne’s and Burden’s injuries. {¶50} Based on the testimony and evidence in this case, we find any r ational trier of fact could have found the essential elements of R.C. 2903.11 (A)(2) and R.C. 2903.08(A)(1)(a) proven beyond a reasonable doubt. We find suf ficient evidence exists to support appellant’s convictions. Appellant’s first assignme nt of error is overruled. III. {¶51} In his third assignment of error, appellant contends the decisi on of the trial court as to Counts 1 through 5 was against the manifest weight of the evidence. {¶52} In determining whether a conviction is against the manifest wei ght of the evidence, the court of appeals functions as the “thirteenth jur or,” and after “reviewing the entire record, weighs the evidence and all reasonable inference s, considers the credibility of witnesses and determines whether in resolving conflicts in t he evidence, the jury clearly lots its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered.” State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of theRichland County, Case No. 2019CA0103 17 evidence and ordering a new trial should be reserved for only t he “exceptional case in which the evidence weighs heavily against the conviction.” Id. {¶53} It is well-established, though, that the weight of the evidence and the credibility of the witnesses are determined by the trier of fac t. State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The trier of f act was free to accept or reject any and all of the evidence offered by the parties and a ssess the witness’s credibility. Id. {¶54} Appellant argues the trial court’s decision was against the man ifest weight of the evidence because the inference that appellant did not kn owingly cause either physical harm or serious physical harm is more believable and p ersuasive than the inference that he did knowingly cause physical or serious physi cal harm. Appellant cites the following in support of his argument: Kotterman’s testimon y that no party reported any physical harm at the time of the incident; the victims clai med delayed injury only after being contacted by a marketing group; Burden never went to the hospital; and testimony by a witness that she knew Burden to be “a liar.” {¶55} Appellant’s argument focuses on the victims’ credibility. Howe ver, the determination as to the credibility of the witnesses is for the trier of fact. As to any inconsistencies in the testimony or evidence noted by appellant , “while the trier of fact may take note of the inconsistencies and resolve or discount th em accordingly * * * such inconsistencies do not render defendant’s conviction against th e manifest weight of the evidence.” State v. Craig , 10th Dist. Franklin No. 99AP-739, 1999 WL 29752. The trier of fact need not believe all of a witness’ testimony, but may a ccept only portions of it asRichland County, Case No. 2019CA0103 18

true. State v. Wilson , 5th Dist. Muskingum No. CT 2019-0039, CT 2019-0040, 2020- Ohio-1217. {¶56} Further, appellant contends the competing inferences suggest th at the cause of the harm is not known, as Osborne made contact with mu ltiple cars and objects, including a car that she hit before being followed by the Impal a. {¶57} As noted above, there is no testimony or evidence that Osborne struck another vehicle prior to being followed by the Impala. The tes timony confirmed she sideswiped the blue truck and hit the sign as she was attemptin g to escape the Impala. Osborne testified there was no damage to the Camry from the blu e truck. Osborne, Burden, and Barrett agree that the Camry “lightly sideswiped” t he blue truck. Buckley stated that when she saw the vehicles the day after the inciden t, there was a lot of damage to appellant’s car, and there was barely any damage to the blue truck. In his investigation, Kotterman concluded the damage to the side of the Camry came fr om the Impala. Appellant testified he did not intend to injure the victims and does not believe he caused their injuries. However, when there are two conflicting versio ns of events, neither of which is unbelievable, it is not within our province to choose which one we believe. State v. Bauman , 7th Dist. Columbiana No. 17 CO 0016, 2018-Ohio-4913. {¶58} After weighing the evidence and evaluating the credibility of t he witnesses, with appropriate deference to the trier of fact’s credibility d etermination, we cannot say that the trier of fact clearly lost its way and created a manif est injustice with regard to felonious assault and aggravated vehicular assault. The trial court found that appellant rammed his vehicle into the victims’ vehicle four times, chasin g them, and that two of the victims suffered serious injuries that required them to seek me dical attention. This is notRichland County, Case No. 2019CA0103 19 the case where the trier of fact clearly lost its way and creat ed such a manifest miscarriage of justice that the conviction must be overturned and a new tri al ordered. See State v. Taylor , 5th Dist. Delaware No. 12CAA020007, 2012-Ohio-5029. Appellan t’s third assignment of error is overruled. IV. {¶59} In his fourth assignment of error, appellant contends the trial court denied him his right to a fair trial due to the admission of improper hearsay testimony. {¶60} Because the hearsay was not objected to, our standard of review is plain

error. State v. Campbell , 69 Ohio St.3d 38, 630 N.E.2d 339 (1994). “Notice of plain er ror under Crim.R. 52(B) is to be taken with the utmost caution, und er exceptional circumstances and only to prevent a manifest miscarriage of jus tice.” State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Plain error will not be found absent a showing by appellant that “but for the error, the outcome of the trial cle arly would have been otherwise.” State v. Williams , 99 Ohio St.3d 439, 793 N.E.2d 446 (2003). Additionally, trial courts are granted broad discretion with respect to the a dmission or exclusion of evidence at trial.” State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). Thus, an appellate court will not reverse a trial court’s ruling absent an abuse of discretion. State v. Myers , 97 Ohio St.3d 335, 780 N.E.2d 186 (2002). {¶61} Appellant cites four specific instances of allegedly improper t estimony: the improper hearsay testimony of Officer Kotterman recounting the victims’ out-of-court statements multiple times throughout the trial; improper bolste ring of witness credibility by Kotterman; testimony about the victims’ state of fear that i s irrelevant andRichland County, Case No. 2019CA0103 20 inflammatory; and the improper hearsay testimony of Kotterman a s to what the victims told him that caused them “to be in such fear.” {¶62} Appellant contends the victims’ state of fear is irrelevant, be cause it has nothing to do with any element of felonious assault or aggravat ed vehicular assault. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evidence Rule 401. Ho wever, relevant evidence must be excluded “if its probative value is substantially outwe ighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jur y.” Evidence Rule 404(A); State v. Vandyne , 5th Dist. Guernsey No. 16CA10, 2017-Ohio-584. {¶63} Appellant is correct that fear is not specifically delineated a s an element of either felonious assault or aggravated vehicular assault. Howe ver, upon our review, we find this testimony is relevant because it relates to one of th e elements of the crime. A victim’s state of mind is admissible pursuant to Evidence Rule 803(3). In determining whether the degree of harm rises to the level of “serious physi cal harm,” many factors are taken into consideration, including whether the harm involves t emporary, substantial incapacity, or whether the harm involves acute pain or substant ial suffering. The definition of physical harm is broader and includes any injury, illness, or physiological impairment. A defendant can violate R.C.2903.11(A)(2) by “atte mpting to cause physical harm to another.” This Court has previously noted that the deg ree of harm that rises to the level of serious physical harm is not an exact science. State v. Hunt , 5th Dist. Tuscarawas No. 2019 AP 07 0023, 2020-Ohio-1124. Further, that the concepts of “pain and suffering” are subjective feelings. State v. Nicholson , 5th Dist. Morgan No. 18 APRichland County, Case No. 2019CA0103 21 0005, 2019-Ohio-1058. Thus, we have previously permitted testi mony from an officer that the victim was “shaken, scared and crying,” along with tes timony from a second witness that the victim was “scared and shaking.” Id. {¶64} Further, this case was tried to the bench, rather than to a jur y. “In a bench trial, a trial court is presumed to have considered only the re levant, material and competent evidence.” State v. Bays , 87 Ohio St.3d 15, 716 N.E.2d 1126 (1999); State v. Teagarden , 5th Dist. Licking No. 08-CA-39, 2008-Ohio-6986. Thus, we mus t presume that, even if any testimony was erroneously admitted into evide nce, the trial court did not consider it in rendering its verdict. Id. Any danger of unfair prejudice, confusion of the issues, or of misleading the trier of fact was minimal. State v. Wilson , 5th Dist. Fairfield No. 09-CA-44, 2010-Ohio-1394. {¶65} Appellant next contends Kotterman’s testimony recounting the vi ctims’ outof-court statements multiple times throughout the trial was ina dmissible hearsay and improperly bolstered the victim s’ credibility. Similarly, appe llant argues Kotterman’s testimony about what caused the victims to be afraid was also i nadmissible hearsay. {¶66} At trial, Kotterman testified to what the victims told him the night of the incident, including that they were chased and their Camry was h it several times. {¶67} Hearsay is “a statement other than one made by the declarant wh ile testifying at trial or hearing, offered in evidence to prove th e truth of the matter asserted.” Evidence Rule 801(C). Testimony which explains the actions of a witness to whom the statement was made, and is offered to show why the witness acte d in a particular manner rather than to prove the truth of the statement, is not hearsay

. State v. Thomas , 61 Ohio St.2d 223, 400 N.E.2d 401 (1980). Given the potential for abus e in admitting statementsRichland County, Case No. 2019CA0103 22 offered to explain an officer’s conduct, the conduct to be expl ained must be relevant, equivocal, and contemporaneous with the statements. State v. Blevins , 36 Ohio App.3d 147, 521 N.E.2d 1105 (10th Dist. 1987). Further, the statement s must meet the standard of Evidence Rule 403(A) (“relevant evidence not admissible if i ts probative value is outweighed by the danger of unfair prejudice, confusing of the issues, or misleading the jury”). Id. Finally, “when the statements connect the accused with the cr ime charged, they should generally be excluded.” Id. {¶68} Upon our consideration of the above law and the facts in this c ase, we find Kotterman’s testimony in recounting the victims’ statement to h im satisfies the requirements of Blevins . Kotterman’s statements came as he was describing how his investigation proceeded after he made contact with the victims. The testimony was not offered for the truth of the matter asserted, but to show the p ath of the investigation and to establish the foundation for Kotterman’s subsequent testimon y, including the photographs he took of the vehicles at the scene, and the compi lation of two police reports after discussion with the other officers at the scene. {¶69} Unlike in the case cited by appellant in support of his argumen t, Kotterman did not testify that he “believed” the victims or testify that the victims were “honest.” State v. Zimmeran , 10th Dist. Franklin No. 18AP-75, 2019-Ohio-721, 132 N.E.3d 11 85, appeal not allowed , 158 Ohio St.3d 1505, 2020-Ohio-2819, 144 N.E.3d 452. Rather, he explained what the victims told him at the scene and how he pro ceeded with his investigation, including examining the vehicles involved and th e area around the scene of the incident. The testimony is not unfairly prejudicial. T he trial court did not commit error in admitting this testimony.Richland County, Case No. 2019CA0103 23
{¶70} Appellant also contends the trial court improperly admitted Kot terman’s testimony about the victims’ narrative statements because it co nstituted improper bolstering. Bolstering is the presentation of evidence to a ju ry in order to make a particular witness’ statement appear more credible. State v. Teagarden , 5th Dist. Licking No. 08- CA-39, 2008-Ohio-6986. We do not find that such testimony was presented in this case. Kotterman did not vouch for the victims’ truthfulness. Rather, he detailed their narrative statement and how it impacted his investigation and related to the evidence at the scene. The trial court did not commit error in admitting this testimon y. {¶71} Kotterman stated at trial that “the vehicle [Impala] was trying to kill them, is what their mindset was.” Appellee argues this testimony is adm issible pursuant to Evidence Rule 803(3), which allows for a statement of the decla rant’s existing mental or emotional condition. While there is no error in the trial cour t’s admission of statements regarding the victims’ expressions of fear, the admission of th e reasons for the victims’ fearful state of mind is error under Rule 803(3). State v. Anderson , 5th Dist. Stark No. 2003CA00349, 2004-Ohio-5474. However, we find the admission of this evidence did not affect appellant’s substantial rights. State v. Gresh , 5th Dist. Delaware No. 09-CAA012-0102, 2010-Ohio-5814. This was a trial to the bench. The testimony in question occupies only a very small portion of an extensive record. The re was evidence, if believed, of appellant’s connection to the offenses in the abse nce of this statement by Kotterman. Thus, the error is harmless as appellant was not pr ejudiced by the admission of such a small piece of evidence in a trial to the bench. State v. Stowers , 5th Dist. Tuscarawas No. 94AP090066, 1996 WL 488798. {¶72} Appellant’s fourth assignment of error is overruled.Richland County, Case No. 2019CA0103 24

II. {¶73} In his second assignment of error, appellant argues his trial c ounsel was ineffective in a manner that prejudiced him. Ineffective Assistance of Counsel {¶74} To succeed on a claim of ineffectiveness, a defendant must sati sfy a twoprong test. Initially, a defendant must show that trial counse l was ineffective, i.e., whether counsel’s performance fell below an objective standard of reaso nable representation and violative of any of his or her essential duties to their client

. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumptio n that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id. {¶75} Even if a defendant shows that counsel was incompetent, the def endant must then satisfy the second prong of the Strickland test, whether the defense was actually prejudiced by counsel’s ineffectiveness such that the reliability of the outcome of the trial is suspect. Id. This requires a showing that there is a reasonable probabilit y that, but for counsel’s unprofessional error, the outcome of the proc eeding would have been different. Id. Appellant makes several arguments as to why he believes his tri al counsel was ineffective. Criminal Rule 29 Motion {¶76} Appellant contends trial counsel was ineffective for failing to move for acquittal under Criminal Rule 29, with resulting prejudice beca use his convictions were against the sufficiency of the evidence. The purpose of a moti on for judgment of acquittalRichland County, Case No. 2019CA0103 25 is to test the sufficiency of the evidence. State v. Wade , 5th Dist. Muskingum No. CT2019-0007, 2019-Ohio-4565. Based upon our analysis and dispo sition of appellant’s first assignment of error, we find appellant’s trial counsel wa s not ineffective in failing to make a Criminal Rule 29 motion for acquittal. Further, this Co urt has previously held that, in a bench or nonjury trial, a defendant’s not guilty plea serv es as a Criminal Rule 29 motion. Id. Failure to Object to Chiropractor Testifying as an Expert Witness {¶77} Appellant avers his trial counsel was ineffective for failing t o object to Simpson testifying as an expert without being qualified by the trial court as one under Evidence Rule 104(A). “The failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.” State v. Fears , 86 Ohio St.3d 329, 715 N.E.2d 136 (1999). A defendant must also show that there was a substa ntial violation of counsel’s essential duties to his client and that his client wa s materially prejudiced by the failure to object. State v. Holloway , 38 Ohio St.3d 329, 527 N.E.2d 831 (1988). {¶78} Appellant is correct that Simpson was never deemed an expert wi tness by the trial court and that defense counsel could have objected to the quoted testimony. However, had appellee so requested, Simpson likely would have b een deemed an expert by the trial court; it appears appellee inadvertently failed to make such a request. State v. Spring , 7th Dist. Jefferson No. 15 JE 0019, 2017-Ohio-768. Simpson t ook pre-med training and ten semesters of chiropractor school, for a total of about eight years of education to become a chiropractor. Simpson is licensed and ha s to complete thirty hours of training every two years to keep his license. Over his twen ty-year career, Simpson has personally treated approximately 16,000 patients in his office. He treats i ndividual s andRichland County, Case No. 2019CA0103 26 helps to relieve the symptoms of individuals who have been in c ar crashes. About twenty percent of his practice is devoted to individuals involved in c ar crashes. {¶79} Thus, we cannot say that defense counsel’s failure to object fe ll below an objective standard of reasonable representation. Further, ther e is no evidence that indicates the result of the trial was unreliable or the proceed ing was fundamentally unfair as a result of defense counsel’s failure to object. We are per suaded that the outcome of this case would not have been different had portions of Simpson ’s testimony been objected to and deleted at trial, as the victims themselves tes tified to their injuries. Failure to Object to Testimony about Victims’ State of Fear {¶80} Appellant argues his counsel was ineffective for failing to obj ect to appellee’s introduction of evidence concerning the three victim s’ state of fear, because it was irrelevant and inadmissible testimony. {¶81} As we discussed above, we find the trial court did not commit e rror in admitting this evidence. Thus, we find any objection would not have been meritorious. Even if this testimony was objectionable, appellant fails to es tablish that the outcome of his trial would have been different had counsel objected. Bolstering Victim Credibility & Victims’ Narrative {¶82} Appellant next avers his trial counsel was ineffective for cons istently failing to object to inadmissible hearsay that bolstered the victims’ t estimony at trial. Similarly, appellant argues his trial counsel was ineffective for failing object to Kotterman’s testimony about what the victims told him. We first note that trial counsel did object to at least one instance of Kotterman testifying to what the victims told him. Further, having already determined that the testimony was properly admitted, ap pellant’s claim ofRichland County, Case No. 2019CA0103 27 ineffectiveness on this issue is overruled. Appellant has not demonstrated that, had counsel objected, the result of the trial court would have been otherwise. Hearsay Connecting Appellant to Charges {¶83} As detailed above, we find the trial court erred in admitting K otterman’s testimony that “the vehicle [Impala] was trying to kill them, i s what their mindset was.” However, we find appellant was not materially prejudiced by the failure to object to this testimony, because this was a trial to the bench. Further, the testimony is a very small portion of an extensive record, and there is other evidence whi ch, if believed, connects appellant to the offenses in the absence of Kotterman’s stateme nt. {¶84} We find the remainder of the statements appellant cites were me rely statements by Kotterman as to how his investigation proceeded a nd what the evidence showed (i.e. mud splash marks, marks on the roadway) during his investigation. Thus, these statements do not improperly connect appellant to the cha rges. We find any objection to these statements would not have been meritorious a nd appellant has not demonstrated that had counsel objected, the result of the trial court would have been otherwise. Ultimate Issue {¶85} Appellant contends his trial counsel was ineffective for failin g to object to Kotterman testifying as to the ultimate issue on whether the Im pala was a deadly weapon, improperly offering a legal conclusion. During redirect, couns el for appellee questioned Kotterman about how many reports he compiled as a result of his investigation. He stated there was a traffic crash report and a felonious assault report . Appellee inquired as to why there were two reports, asking, “So we have two reports. O ne pertaining to feloniousRichland County, Case No. 2019CA0103 28 assault; correct? * * * Because the vehicle involved being a de adly weapon; correct?” Kotterman responded, “Correct.” Kotterman then testified about the purposes of each report. {¶86} “Testimony in the form of an opinion or inference otherwise adm issible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.” Evidence Rule 704; State v. Stafford , 5th Dist. Ashland No. 18-COA-036, 2019- Ohio-3628. In this case, Kotterman made the statement to expla in the difference between the types of reports he compiled and explain why he generated a felonious assault complaint. {¶87} However, even if the testimony should not have been admitted, a ppellant was not materially prejudiced by the failure to object to this testimony and appellant fails to establish that the outcome of his trial would have been diff erent had counsel objected. The testimony is one sentence of an extensive record. Further, since this was a bench trial, the danger of unfair prejudice, confusion of the issues, or misleading the trier of fact is minimal, particularly where the trial court is the trier of fact determining whether the Impala was used as a deadly weapon. State v. Wilson , 5th Dist. Fairfield No. 09-CA-44, 2010-Ohio-1394. “In a bench trial, a trial court is presumed t o have considered only the relevant, material and competent evidence.” State v. Bays , 87 Ohio St.3d 15, 716 N.E.2d 1126 (1999); State v. Teagarden , 5th Dist. Licking No. 08-CA-39, 2008-Ohio-6986. {¶88} Appellant’s fourth assignment of error is overruled. V. {¶89} In his fifth assignment of error, appellant argues he was denie d his right to a fair trial through cumulative error, including: ineffective assistance of counsel, irrelevantRichland County, Case No. 2019CA0103 29 evidence about the victims’ state of fear, hearsay evidence of Kotterman that directly linked appellant to the crimes, Simpson testifying as an expert , and Kotterman’s testimony on the ultimate issue. {¶90} The Ohio Supreme Court held that, pursuant to the cumulative er ror doctrine, “a conviction will be reversed where the cumulative e ffect of errors in a trial deprives a defendant of the constitutional right to a fair tria l even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. Garner , 74 Ohio St.3d 49, 656 N.E.2d 623 (1995). {¶91} In this case, we do not find multiple instances of harmless err or triggering the cumulative error doctrine. Appellant’s fifth assignment of error is overruled. {¶92} Based on the foregoing, appellant’s assignments of error are ov erruled.Richland County, Case No. 2019CA0103 30
{¶93} The August 20, 2019 and November 1, 2019 judgment entries of th e Richland County Court of Common Pleas are affirmed.

By Gwin, P.J., Wise, John, J., and Baldwin, J., concur