[Cite as State v. Hadlock , 2021-Ohio-3176.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABUL A COUNT Y

STATE OF OHIO, Plaintiff-Appellee,

- v - SHAWN MATTHEW HADLOCK, Defendant-Appellant. CASE NO. 2020-A-0054

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2020 CR 00129

O P I N I O N Decided: September 13, 2021 Jud g ment: Affirmed

Colleen M. O’Toole , Ashtabula County Prosecutor, and Shelley M. Pratt , Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 ( For Plaintiff-Appellee )

. Stephen J. Futterer , Willoughby Professional Building, 38052 Euclid Avenue, #105, Willou g hb y , OH 44094 ( For Defendant-Appellant )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, Shane Matthew Hadlock, appeals from the judgment of conviction, entered by the Ashtabula County Court of Common Ple as, after trial by jury,

on one count of felonious assault. We affirm. {¶2} On January 4, 2020, Christopher Thompson was at the apartment o f a friend, William Reen, with another friend, Laura Whitaker. Mr. Thompson was sitting in a chair close to Ms. Whitaker as she shared photos with him on he r phone. Suddenly, appellant entered the apartment, advanced on Mr. Thompson and s truck him on the right2

Case No. 2020-A-0054 side of his upper face near the eye socket. He lost consciousn ess briefly and, upon regaining awareness, he accused appellant of sucker punching hi m. This prompted appellant to challenge Mr. Thompson to go outside and fight fur ther. Ms. Whitaker stepped in and asked appellant to stop. He pushed her aside an d left the apartment. Ms. Whitaker and appellant had been in a long-term relationship and had a child together. Prior to the assault, Mr. Thompson and appellant were friends. Mr. Thompson, however, was under the impression that Ms. Whitaker and appellant were b roken up and had recently asked her out. Appellant was aware of this and, as a result, Mr. Thompson opined jealousy was the reason for appellant’s actions. {¶3} Once appellant departed, Mr. Thompson went into the bathroom of the apartment and noticed he was cut near his eye, and his face, wh ere the punch struck,

looked “flattened a little bit. It looked like it was broken.” He drove himself to the hospital where he received four stitches to mend a cut under his eye. L ater, he received a CAT scan and medical personnel advised him aspects of his nose and right eye socket were broken. Surgery was required to repair his injuries. During t he period leading up to the surgery, Mr. Thompson maintained he was physically disfigured; to wit, his eye began to droop and his face was flattened. During the surgery, he state d a metal plate was installed to fix the damage. Due to these events, Mr. Thompson asserted he now has a permanent scar under his eye. {¶4} Appellant was subsequently indicted on one count of felonious a ssault, a felony of the second degree, in violation of R.C. 2903.11(A)(1) . He entered a plea of not guilty. The matter proceeded to jury trial, after which, appel lant was found guilty. Appellant was sentenced to serve a minimum term of seven years and a maximum of 10 and one-half years imprisonment. This appeal follows.3

Case No. 2020-A-0054 {¶5} Appellant’s first assignment of error provides: {¶6} “The trial court committed prejudicial error by overruling defe ndantappellant’s motion for judgment of acquittal and entering judgm ent against defendantappellant finding him guilty of felonious assault upon the jury verdict, where the evidence at trial was insufficient to prove each and every element of th e offense beyond a

reasonable doubt.” {¶7} A challenge to the sufficiency of the evidence concerns the sta te’s burden of production and tests whether the prosecution presented adequ ate evidence to submit

the matter to the fact finder. See, e.g., State v. Thompkins , 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring). When reviewing the sufficiency of evid ence, “courts are to assess not whether the state’s evidence is to be believed, but whether , if believed, the evidence against a defendant would support a conviction.” Id. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the pro secution, any rational trier of fact could have found the essential elements of the crime pr oven beyond a reasonable

doubt.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. (Superseded by statute on other grounds). {¶8} Appellant was convicted of felonious assault, in violation of R .C. 2903.11(A)(1), which provides: “No person shall knowingly * * * [c]ause serious physical harm to another or to another’s unborn[.]” {¶9} Appellant first argues the state failed to offer sufficient evi dence Mr. Thompson suffered serious physical harm as a result of the assa ult. He acknowledges Mr. Thompson testified that, after the incident: he required st iches and his facial bones were flattened; that he required surgery to correct the damage; and, due to the injury and the surgery, he had a permanent scar and a plate was installed in his head. Appellant4

Case No. 2020-A-0054 asserts, however, this was insufficient to establish the requis ite proof because no medical testimony was offered to substantiate the post-emergency-room t reatment Mr. Thompson received. We do not agree. {¶10} Appellant did not refute Mr. Thompson’s testimony regarding his injuries. Moreover, the state offered medical testimony of the emergency room physician that treated Mr. Thompson upon his arrival at the hospital. Dr. Imr aan Haniff testified he examined appellant and noted a laceration on the right aspect o f his face, which he

sutured. The doctor then ordered a CT scan which showed “a com minuted and depressed displaced fracture of the right orbit and maxillary s inus. There is a fracture of the right lateral and inferior walls of the orbit, right zygoma tic arch, anterior and lateral walls of the right maxillary sinus, associated soft tissue swel ling and subcutaneous gas overlying the right facial regi on.” Dr. Haniff confirmed, in l ayman’s terms, Mr. Thompson had a “fractured face.” Mr. Thompson additionally testified th at, in the several months leading up to his surgery, he could not sleep on the right side of his head due to the discomfort of the injury. {¶11} R.C. 2901.01(A) defines “serious physical harm” and provides, i n relevant part: “‘Serious physical harm means’ any of the following: * * * [a]ny physical harm that involves some permanent incapacity, whether partial or total, o r that involves some temporary, substantial incapacity * * * [or] [a]ny physical har m that involves some permanent disfigurement or that involves some temporary, seriou s disfigurement.” R.C. 2901.01(A)(5)(c) and (d). {¶12} Here, the reasonable inference could be drawn that Mr. Thompson ’s testimony that he was incapable of sleeping on his right side d ue to the pain and discomfort is sufficient to establish “temporary, substantial i ncapacity.” Moreover, the5

Case No. 2020-A-0054 scarring and the insertion of the metal plate in Mr. Thompson’s head could be deemed reasonably sufficient to establish “permanent disfigurement.” And Mr. Thompson’s testimony that the afflicted area, prior to surgery, was flatte ned, could be reasonably viewed as a form of temporary, serious disfigurement. We there fore hold the state produced sufficient evidence to establish Mr. Thompson sustaine d serious physical harm

as a matter of law. {¶13} Next, appellant asserts the state failed to produce sufficient evidence that appellant acted “knowingly” to cause serious physical harm to M r. Thompson. In particular, he argues he did not know physical injury would eve ntuate from the strike. {¶14} A person acts “knowingly, regardless of purpose, when the perso n is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22(B). “The legal concept of ‘knowi ngly’ incorporates the scienter requirement that one ought to know one’s actions w ill ‘probably cause certain results.’” (Citation omitted.) State v. Barker , 11th Dist. Portage No. 2010-P-0044, 2012- Ohio-522, ¶114. “[T]he concept of reasonable probability literally embraces the concept of foreseeability.” Id. In this respect, one cannot punch another in the face withou t the reasonably foreseeable consequence that one’s actions will caus e physical or even serious physical harm. {¶15} Further, “[t]o act knowingly, a defendant merely has to be aw are that the result may occur, and it is not necessary to demonstrate that t he defendant intended to cause physical injuries.” State v. Ford, 12th Dist. Butler No. CA2009-01-039, 2009-Ohio6046, ¶49, citing State v. Nutekpor, 6th Dist. Wood No. WD-05-062, 2006-Ohio-4641, ¶15; see, also, State v. Hawkins, 2d Dist. Montgomery No. 21691, 2007-Ohio-2979,6

Case No. 2020-A-0054 ¶31. The probable consequence of swinging a fist at a person’s fac e is that the person struck will sustain physical harm, and perhaps serious physical harm. State v. Buchar , 5th Dist. Tuscarawas No. 2017AP010003, 2017-Ohio-7601, ¶24. See also In re R.A.M., 11th Dist. Lake No. 2010-L-011, 2010-Ohio-4198, ¶6 (“[S]wingin g an object toward a person is likely to cause the object to come into cont act with the person.”). To that end, courts have recognized that the act of “‘punching som eone’ is sufficient to establish the element of ‘knowingly’” for purposes of the assau lt statutes. (Citations omitted.) State v. Pigg , 2d Dist. Montgomery No. 25549, 2013-Ohio-4722, ¶33. {¶16} The evidence demonstrated appellant entered the apartment and immediately struck Mr. Thompson in the face. Mr. Thompson desc ribed the assault as a “sucker punch,” indicating he did not have an opportunity to pr otect or defend himself. This observation was not contested. Moreover, Mr. Thompson tes tified he was interested in dating Ms. Whitaker and had asked her out . Ms. Whitaker confirmed these points and also disclosed Mr. Thompson’s invitation to appellant, her long -term boyfriend. Although, at the time of the assault, Mr. Thompson stated he was uncertai n why appellant struck him, he ultimately concluded jealousy triggered the attack. Un der the circumstances, the jury could reasonably conclude that appellant, in punching Mr. Thompson, “knowingly” attempted to cause a specific result, i.e., physical harm, if n ot serious physical harm (which, as discussed above, legally occurred). See, e.g., State v. Buckley , 11th Dist. Lake No. 2018-L-118, 2019-Ohio-3991, ¶47. We therefore conclude the state presented sufficient evidence for the jury to conclude appellant acted kn owingly. {¶17} Appellant’s first assignme nt of error lacks merit. {¶18} Appellant’s second assignment of error provides:7

Case No. 2020-A-0054 {¶19} “The trial court committed prejudicial error by overruling defe ndantappellant’s counsel’s challenges for cause of two self-admitted prejudicial jurors at voir

dire.” {¶20} “The Sixth Amendment to the United States Constitution guarante es a defendant the right to a trial by fair and impartial jurors.” State v. Oliver , 11th Dist. Portage No. 2010-P-0017, 2012-Ohio-122, ¶37. When counsel challenges a juror for cause, “[t]he ultimate question is whether the ‘juror sw[ore] that he could s et aside any opinion he might hold and decide the case on the evidence, and [whether] the jur or’s protestation of impartiality [should be] believed.’” (Citations omitted). State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, ¶140. “[A] court’s determination in a voir dir e proceeding of a prospective juror’s fairness and impartiality constitutes rever sible error only when it can be shown that the court, in conducting the examination, clearly abused its discretion.”

State v. Williams , 6 Ohio St.3d 281, 288 (1983). {¶21} We first point out that, in this felony case, appellant was ent itled to four peremptory challenges, which she exhausted. See Crim.R. 24(D). In light of this, appellant argues that the trial court erred in failing to dismi ss prospective jurors, Karen Smith and Susan Nickels, for cause. In support, appellant iden tifies the following exchanges. Ms. Smith stated: “Yeah, I truly believe that there ’s nothing that can justify an innocent verdict for someone you know did it.” Defense coun sel asked if anyone else felt the same way as Ms. Smith. Ms. Nickels responded that she did, stating: “If – if I know that that person did what – like sexually or murder, I cou ld not set that person free, I couldn’t, why would I want to set a monster out into the comm unity when I knew that they did wrong?” Defense counsel further inquired: “Okay. Eve n if it meant that the state wasn’t able to meet their burden for every element in the offen se, but you felt in your heart8

Case No. 2020-A-0054 that that person was guilty but the state wasn’t able to prove it?” To which Ms. Nickels responded: “If the person is guilty, I would know. There’s – you can sense. It’s that sixth

sense.” {¶22} The court subsequently engaged the two jurors: {¶23} THE COURT: Karen Smith. Um, this is not a case involving child ren and it’s not a murder case, correct? {¶24} KAREN SMITH: Yes {¶25} THE COURT: Because it’s not the two that you seem to have some issues with, can you be fair and impartial to everybody in this case? {¶26} KAREN SMITH: Yeah. {¶27} THE COURT: You haven’t made up your mind, right? {¶28} KAREN SMITH: No. {¶29} THE COURT: ‘Cause you don’t know anything about the case, righ t? {¶30} KAREN SMITH: Exactly. {¶31} THE COURT: Okay. And then Susan Nickels. {¶32} SUSAN NICKELS: Yes, sir. {¶33} THE COURT: You said something about knowing in your heart. Yo u understand we’re required to base decisions on evidence, not ho w we feel in our hearts? Do you understand that? {¶34} SUSAN NICKELS: Yes. {¶35} THE COURT: And you can make a de cision based on the evidence? {¶36} SUSAN NICKELS: Evidence only. {¶37} The trial court, in denying defense counsel’s motion to challen ge the jurors for cause, the court stated: “Both jurors indicated they could be fair and impartial. Both9

Case No. 2020-A-0054 jurors recognized this case is not a child abuse case or a murd er case. Susan Nickels, emphatically using her arms, said she would make the decisions only on the evidence, and the instructions.” Each prospective juror stated that she could render a decision on the evidence, and not preconceptions of guilt. Further, the ex change each prospective juror had with the court indicated that, in this matter, she ha d no preconceptions and that she could be impartial. In this respect, the trial court did n ot abuse its discretion in overruling counsel’s challenge for cause. {¶38} Notwithstanding these points, appellant asserts Ms. Nickels’ an d Ms. Smith’s comments contaminated the impartiality of the jurors wh o sat with them in the pool. We do not agree. {¶39} Initially, it is unclear how the remarks made by the prospectiv e jurors at issue could have contaminated the entire jury pool . Defense counsel asked whether any other juror shared Ms. Smith’s initial statement regarding her potential inability to find a person not guilty if “you know [he or she] did it.” Only Ms. N ickels responded in the affirmative and the court proceeded to conduct an inquiry into their potential for bias or lack of impartiality. This directly suggests no other prospect ive jurors in the pool were negatively influenced by the two identified prospective jurors’ statements, let alone shared their views. In this regard, we fail to see how the impartiali ty of the empaneled jurors who sat in the pool with Ms. Smith and Ms. Nickels was deleteriousl y impacted. {¶40} Furthermore, once the jury was selected, there was no motion or argument made by defense counsel that the statements of Ms. Nickels and Ms. Smith somehow endangered the impartiality of the remaining jurors. Because t he trial court did not have an opportunity to rule on this argument, it is forfeited on app eal and may be reviewed only for plain error. See State v. Motley , 11th Dist. Portage No. 2017-P-0023, 2018-Ohio-10

Case No. 2020-A-0054 3324, ¶23, citing Crim.R. 52(B). “Notice of plain error u nder Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and on ly to prevent a manifest miscarriage of justice.” State v. Long , 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. {¶41} Here, appellant cites nothing in the record to demonstrate that Ms. Smith’s and Ms. Nickels’ remarks biased or prejudiced the empaneled jur ors other than the fact that the remarks occurred. Generally, prejudicial effect is not presumed, but must be affirmatively shown of record. See State v. Treesh , 90 Ohio St.3d 460, 464 (2001). Appellant has failed to demonstrate prejudice, and we therefore decline to hold the trial court’s failure to sua sponte dismiss the jury panel en masse was a manifest miscarriage of justice. {¶42} Appellant’s second assignment of error lacks merit. {¶43} His third assignment of error provides: {¶44} “The trial court committed prejudicial error and denied defenda nt-appellant a fair trial due to the structural errors of proceeding with a jury trial of defendant-appellant under the current pandemic emergency concerns and precautions, and violated his rights to due process under Article I, Section 16 of the Ohio Constitu tion, and the Sixth and

Fourteenth Amendments of the United States Constitution.” {¶45} Under his final assignment of error, appellant contends his rig ht to

confrontation was violated when Dr. Haniff was allowed to testi fy while wearing a mask; he further contends his rights were violated because the jury p ool did not represent a fair cross section of the community “due to the pandemic environment .” We do not agree.11

Case No. 2020-A-0054 {¶46} First, no objection was leveled regarding Dr. Haniff wearing a mask while testifying and, similarly, no objection was made as to the make -up of the jury. As discussed above, such issues are therefore reviewed for plain e rror. {¶47} With respect to Dr. Haniff’s donning of a mask, the trial court deferred to his professional judgment. When the doctor stated he preferred to wear a mask, the court permitted him to do so. Appellant contends his confrontation r ight was violated because he could not fully, physically face Dr. Haniff during cross-exa mination. Although he does not expressly state how the presentation of the doctor’s testim ony with a mask on undermined his right to confront him, we can reasonably assume his position is premised upon the jury’s inability to see and appreciate the witness’ fu ll facial expressions and demeanor. We find appellant’s position unpersuasive. {¶48} The Sixth Amendment’s Confrontation Claus provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be con fronted with the witnesses against him.’” Crawford v. Washington , 541 U.S. 36, 42 (2004). “The Confrontation

Clauses were written into our Constitutions ‘ to secure for the opponent the opportunity of

cross-examination. The opponent demands confrontation, not for the idle purpose o f gazing upon the witness, or of being gazed upon by him, but forthe purpose of crossexamination, which cannot be had except by the direct and perso nal putting of questions and obtaining immediate answers’ (Emphasis sic. )” State v. Self, 56 Ohio St.3d 73, 76– 77 (1990), citing 5 Wigmore on Evidence 150, Section 1395 (1974 ). {¶49} “Literal face-to-face confrontation is not the sine qua non of the confrontation right.” Maryland v. Craig , 497 U.S. 836, 847 (1990). Indeed, “physical confrontation may constitutionally be denied where the denial i s necessary to further an12

Case No. 2020-A-0054 important public policy and ‘the reliability of the testimony i s otherwise assured.’” Self , supra , quoting Craig , supra. {¶50} With these points in mind, appellant was not denied his right t o physically confront Dr. Haniff. The doctor was present at trial and testi fied to Mr. Thompson’s condition and his treatment upon arrival in the emergency room. And, while there may be a fine line, under certain circumstances, between expert and fact witnesses, Dr. Haniff’s testimony related to his technical expertise as an eme rgency room physician and how that expertise was employed when Mr. Thompson was treated f or his injuries. In this respect, it is somewhat difficult to imagine how the jury’s ina bility to view the doctor’s nose and mouth would have any impact on its evaluation of the substa nce of his testimony. The testimony was of a medical nature and was derived, in large part, from the notes that were taken when Mr. Thompson was admitted. The evidence provid ed by Dr. Imhoff, therefore, was inherently informational in nature and the prese nce (or absence) of a mask would not affect the reliability of its substance. {¶51} In any event, we fail to see how the Confrontation Clause someh ow requires a jury to see a witness’ entire face or body. See Morales v. Artuz , 281 F.3d 55, 56, 60- 61 (2d Cir.2002) (finding that permitting a witness to testify while wearing dark sunglasses was not contrary to clearly established federal law because it “resulted in only a minimal impairment of the jurors’ opportunity to assess her credibility ”); United States v. de JesusCastaneda , 705 F.3d 1117, 1120-21 (9th Cir.2013) (finding that permittin g a confidential informant to testify wearing a wig and fake mustache did not vi olate the Confrontation Clause). {¶52} Demeanor is the language of the entire body. The jurors were able to observe how Dr. Haniff moved when he answered a question; to ob serve hesitation(s), if13

Case No. 2020-A-0054 any, in his answers; if he blinked in an unusual way or rolled his eyes. The Confrontation Clause cannot be reasonably construed to afford the right to se e a witness’ lips move or nose wrinkle any more than it could be understood to guarantee that jurors must observe a witness’ bare arms to determine whether he or she had “gooseb umps” as the result of a uniquely probative question. J ust as proper clothing will co ver sweating or other potentially inadvertent physical reactions to effective questio ning, masks will invariably cover a witness’ nose and mouth. This does not, however, preve nt a jury from constructively assessing the credibility of the testimony a wit ness offers. {¶53} We recognize that body language and hesitation in testimony are critically important in gleaning whether a witness is lying, hiding inform ation, or being truthful. We decline, however, to conclude that the wearing of a mask, parti cularly in the case of a physician testifying to his or her assessment and diagnostic me thods, would prevent the jury from effectively adjudicating the witness’ credibility. T he jurors were able to physically see the doctor’s body language, albeit not his nose and mouth, as well as hear the testimony. Because counsel was able to cross-examine the doctor and the testimony was understood, despite his mask, we hold appellant did not suffer a deprivation of his right

to Confrontation. {¶54} Next, appellant asserts that, owing to the COVID-19 pandemic, t he jury which was empaneled did not represent a fair, cross section of the community. Appellant alleges the jury pool consisted of “far-too-many” victims of cr ime, retired-law enforcement or corrections personnel, and individuals related to or acquain ted with law enforcement

officials. {¶55} Selecting a jury from a representative cross-section of the com munity is an important element of the Sixth Amendment right to jury trial. Taylor v. Louisiana , 419 U.S.14

Case No. 2020-A-0054 522, 528 (1975). The Sixth Amendment does not, however, require that juries “mirror the community and reflect the various distinctive groups in the pop ulation.” Id. at 538. It does demand, though, that the “jury wheels, pools of names, panels o r venires from which the juries are drawn must not systematically exclude distinctive gr oups in the community.” Id. {¶56} In Duren v. Missouri , 439 U.S. 357 (1979), the United States Supreme Court held that to establish a prima facie violation of the cross-sec tion requirement, a defendant must demonstrate “(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are

selected is not fair and reasonable in relation to the number o f such persons in the community; and (3) that this underrepresentation is due to syst ematic exclusion of the group in the jury-selection process.” Id. at 364. If there is a prima facie showing, the state bears the burden of “justifying this infringement by showing at tainment of a fair cross section to be incompatible with a significant state interest.” Id. at 368. {¶57} Appellant fails to meet the first prong of the Duren analysis. To wit, he

claims that the venire “did not consist of even one of Defendan t-Appellant’s peers.” He fails, however, to elucidate what his peer group constitutes an d therefore cannot establish the alleged unrepresented class of individuals is “distinctive. ” Further, even if the jury pool was made up of “far-too-many” people whose experiences, oc cupations, or personal acquaintanceships might suggest a potential bias toward him, hi s failure to set forth the group which he maintains was unrepresented makes it impossible to evaluate the second prong. And, regardless of this point, a review of the voir dir e demonstrates that the jurors selected stated they could be fair and impartial and adjudicate the matter on the evidence. In this regard, his allegation regarding the panel members’ bac kground cannot engender prejudice. In light of these points, we conclude that appellan t failed to set forth a prima15

Case No. 2020-A-0054 facie case that the pandemic undermined his right to a jury fro m a fair cross-section of the community. See State v. Freeman , 2d Dist. Montgomery No. 2020-CA-33, 2021- Ohio-734, ¶19. (holding that the exclusion of persons 65 years an older from the jury pool due to the pandemic was not, given the evidence, a distinctive group and thus the defendant suffered no prejudice). {¶58} Appellant’s final assignm ent of error lacks merit. {¶59} For the reasons discussed in this opinion, the judgment of the Ashtabula County Court of Common Pleas is affirmed.

THOMAS R. WRIGHT, J., MATT LYNCH, J.,

concur.