[Cite as State v. Wiewall, 2016-Ohio-5154.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

v. : No. 16AP-33 

 (C.P.C. No. 14CR-5917) 

Gregory Wiewall, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on July 28, 2016 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L. 

Prichard, for appellee. 

On brief: Brian J. Rigg, for appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J.

{¶ 1} Gregory Wiewall is appealing from his conviction on a charge of felonious 

assault. He assigns a single error for our consideration: 

THE VERDICT IS AGAINST THE SUFFICIENCY AND 

MANIFEST WEIGHT OF THE EVIDENCE. 

{¶ 2} Sufficiency of the evidence is the legal standard applied to determine 

whether the case should have gone to the jury. State v. Thompkins, 78 Ohio St.3d 380, 

386 (1997). In other words, sufficiency tests the adequacy of the evidence and asks 

whether the evidence introduced at trial is legally sufficient as a matter of law to support a 

verdict. Id. "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 
No. 16AP-33 2 

elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 

259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 

(1979). The verdict will not be disturbed unless the appellate court finds that reasonable 

minds could not reach the conclusion reached by the trier of fact. Jenks at 273. If the 

court determines that the evidence is insufficient as a matter of law, a judgment of 

acquittal must be entered for the defendant. See Thompkins at 387. 

{¶ 3} Even though supported by sufficient evidence, a conviction may still be 

reversed as being against the manifest weight of the evidence. Thompkins at 387. In so 

doing, the court of appeals, sits as a " 'thirteenth juror' " and, after " 'reviewing the entire 

record, weighs the evidence and all reasonable inferences, considers the credibility of 

witnesses and determines whether in resolving conflicts in the evidence, the jury clearly 

lost its way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.' " Id. (quoting State v. Martin, 20 Ohio App.3d 172, 175 

(1st Dist.1983)); see also Columbus v. Henry, 105 Ohio App.3d 545, 547-48 (10th 

Dist.1995). Reversing a conviction as being against the manifest weight of the evidence 

should be reserved for only the most " 'exceptional case in which the evidence weighs 

heavily against the conviction.' " Thompkins at 387. 

{¶ 4} As this court has previously stated, "[w]hile the jury may take note of the 

inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio 

St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the 

manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-

1236 (May 28, 1996). It was within the province of the jury to make the credibility 

decisions in this case. See State v. Lakes 120 Ohio App. 213, 217 (4th Dist.1964), ("It is 

the province of the jury to determine where the truth probably lies from conflicting 

statements, not only of different witnesses but by the same witness.")

{¶ 5} See State v. Harris, 73 Ohio App.3d 57, 63 (10th Dist.1991) (even though 

there was reason to doubt the credibility of the prosecution's chief witness, he was not so 

unbelievable as to render verdict against the manifest weight). 

{¶ 6} Felonious assault is defined in R.C. 2903.11: 

No person shall knowingly do either of the following: 
No. 16AP-33 3 

(1) Cause serious physical harm to another or to another's 

unborn; 

(2) Cause or attempt to cause physical harm to another or to 

another's unborn by means of a deadly weapon or dangerous 

ordnance. 

{¶ 7} Aggravated assault is defined in R.C. 2903.12: 

(A) No person, while under the influence of sudden passion or 

in 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, shall 

knowingly: 

(1) Cause serious physical harm to another * * *[.] 

{¶ 8} There is no serious debate about whether or not Wiewall swung a baseball 

bat and hit James Dunaway in the face, breaking Dunaway's nose and bones near his eyes. 

Thus, the testimony at trial clearly showed that Wiewall was guilty of felonious assault 

unless either the defense of self-defense applied or Wiewall acted under the kind of 

provocation contemplated to lower the offense to aggravated assault. 

{¶ 9} Wiewall had the burden of proving to the jury that he acted in self-defense. 

At the time that Wiewall hit Dunaway in the face, three Columbus police officers were 

present. The officers had been summoned to end the confrontation between the two men, 

both of whom were visibly injured. The officers had also been trying to sort out who was 

at fault for the altercation. 

{¶ 10} At the time Wiewall swung the bat, he was not in imminent danger of 

serious physical harm or death so he was not entitled to use deadly force to defend 

himself. A baseball bat is a deadly weapon when swung at another's head. It is quite 

capable of inflicting death and did inflict serious physical harm on Dunaway. Under the 

circumstances, the jury's rejection of self-defense as justification for Wiewall's actions was 

appropriate. 

{¶ 11} The jury in its deliberations also had the option to apply the lesser offense of 

aggravated assault to the facts before them. The jury did not do so. The situation had 

been developing over an extended period of time. Whatever passion or rage was present 
No. 16AP-33 4 

was not sudden. Police had been summoned and had talked to the two men. The men 

had had time to allow their passions or rage to cool. Wiewall was still angry as the police 

wrapped up their investigation and may have been further angered by the fact that the 

police did not arrest Dunaway for what happened before the police arrived. 

{¶ 12} Again, whatever anger or passion was present when Wiewall swung the 

baseball bat was not a sudden anger or passion. The jury appropriately rejected the lesser 

offense of aggravated assault. 

{¶ 13} Because of the foregoing, the jury's verdict was not inconsistent with the 

manifest weight of the evidence. The verdict was also supported by legally sufficient 

evidence. The single assignment of error is overruled and the judgment of the Franklin 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

SADLER and HORTON, JJ., concur.