[Cite as State v. Dailey, 2015-Ohio-290.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 Plaintiff - Appellee : Hon. W. Scott Gwin, P.J. 

 : Hon. Sheila G. Farmer, J. 

 : Hon. Craig R. Baldwin, J. 

 : 

-vs- : 

 : 

MATTHEW J. DAILEY : Case No. 2014 AP 06 0021 

 : 

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County 

 Court of Common Pleas, Case No. 

 2013 CR 10 0221 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: January 26, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

ROBERT C. URBAN JR. MARK A. PERLAKY 

Assistant Prosecuting Attorney Tuscarawas County Public Defender 

125 E. High Avenue 153 N. Broadway St. 

New Philadelphia, OH 44663 New Philadelphia, OH 44663 
Tuscarawas County, Case No. 2014 AP 06 0021 2 

Baldwin, J.

{¶1} Defendant-appellant Matthew Dailey appeals his conviction and sentence 

from the Tuscarawas County Court of Common Pleas on one count of felonious assault. 

Plaintiff-appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On October 15, 2013, the Tuscarawas County Grand Jury indicted 

appellant on one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of 

the second degree. At his arraignment on October 16, 2013, appellant entered a plea of 

not guilty to the charge. 

{¶3} Appellant, on April 3, 2014, filed a Motion to Exclude Prior Bad Acts. 

Appellant, in his motion, asked that the trial court exclude mention of any conviction of 

assault and any mention of appellant saying that he was a fighter or participated in fight 

training and/or competitions. Prior to the commencement of trial on April 8, 2014, 

appellee indicated that it would not be presenting evidence of a prior bad act. The trial 

court stated to defense counsel that “should there be something that comes out in 

testimony that you believe implicates [Evid.R.] 404 then of course we’ll stop, remove the 

jury, have an argument and I’ll make a ruling.” Transcript at 9. 

{¶4} At trial, Kelly Nalley, a barmaid at D Kay’s Bar and Grill, testified that she 

was working on the evening of September 11, 2013. She testified that she knew Clay 

Clark, the victim in this case, because he came in often for their karaoke nights. Clark 

was in the bar on the night in question. According to Nalley, appellant came into the bar 

for the first time that night near closing time with two girls, one whom she knew. Nalley 

testified that the three of them sat around and that when she spoke with appellant at the 
Tuscarawas County, Case No. 2014 AP 06 0021 3 

juke box, appellant told her that he liked confrontation, that he was “a bad ass”, and that 

he liked to fight. Transcript at 171. 

{¶5} At some point, Clark bought drinks for everyone. According to Nalley, 

there was a brief exchange between appellant and Clark involving a dispute about the 

two men’s employment, but the matter was resolved. Appellant, Clark and the two girls 

then played pool together, danced and talked. When asked to describe Clark, Nalley 

testified that he was a “sweet man“ who shook hands with people who came into the bar 

and befriended everyone. Transcript at 173. She testified that she was giving Clark a 

ride home that evening at the close of business, and that they were walking appellant 

and the two girls out the door. Nalley testified that when Clark extended his hand to 

appellant, appellant punched him in the nose and knocked him out. Clark then fell to 

the ground. When asked, she stated that there had not been any physical contact 

between the two prior to such time. Nalley further testified that Clark had no recollection 

of what happened. 

{¶6} On cross-examination, Nalley testified that Clark came in a couple of times 

a week and had six or eight beers and four or five Vegas bombs, which is a mixture of 

Crown Royal, Red Bull and Peach Schnapps. She testified that Clark had been at the 

bar from approximately 8:00 p.m. until 2:00 a.m. Nalley testified that she did not hear 

appellant whistle for either woman who were with him. She further admitted that in her 

written statement to police, she did not mention that appellant had bragged about liking 

confrontation. 

{¶7} The next witness to testify was Kimberly Taylor. She testified that she 

knew Tara Everhart, who was her neighbor and friend. Taylor testified that on 
Tuscarawas County, Case No. 2014 AP 06 0021 4 

September 11, 2013, she and Everhart picked up appellant, who she had never met 

prior to that evening. The three of them went to D Kay’s where they hung out with Clark 

and a man named Cruz. The following is an excerpt from her testimony: 

{¶8} Q: During the course of the evening did you get the impression he, 

[appellant] was hitting on your or trying to impress you? 

{¶9} A: Well, he talked about like fighting and that he was a bad ass I guess. I 

don’t know. There was a lot of conversation and unnecessary comments made I guess 

that made me feel uncomfortable that night. 

{¶10} Q: What kind of comments? 

{¶11} A: Just about him fighting and how he has knocked people out before 

and it just made me feel kind of unsure of my surroundings because I wasn’t sure how 

he was going to react. 

{¶12} Transcript at 216. Taylor, when asked about Clark, testified that he was 

very nice and respectful and was generous. 

{¶13} According to Taylor, when closing time came, appellant whistled for her to 

come and Clark asked “Did he just call you ladies like dogs.” Transcript at 218. Clark 

then insisted on walking her to the car. She stated that Clark was putting out his right 

hand to say goodbye to Everhart when appellant punched him in the face. Taylor 

indicated that there had not been any fight or words exchanged prior to the punch. 

Appellant then yelled at the two women to get the car and they left in Everhart’s car. 

Appellant was driving at the time. The three then went to appellant’s house where they 

changed clothes and then left in his truck and went to Denny’s. 
Tuscarawas County, Case No. 2014 AP 06 0021 5 

{¶14} On cross-examination, Taylor testified that appellant “came off a little bit 

aggressive”, but she did not feel fearful around him. Transcript at 231. 

{¶15} Testimony was adduced at trial that Clark told a doctor at the emergency 

room that he thought that he had been assaulted by two people while working as a 

bouncer at a bar and that he had lost consciousness for ten minutes. He claimed that he 

had been punched and kicked in the chest, but x-rays showed no chest injury. Clark 

was diagnosed with a subdural hematoma. He also had a nasal bone fracture and a 

tooth knocked out. He later was seen by a neurosurgeon. Appellant had told friends 

who drove him to the emergency room that he could not remember what had happened 

and that he had been jumped when he walked out of the bar. 

{¶16} Deputy Travis Stocker of the Tuscarawas County Sheriff’s Office testified 

that he was dispatched to the hospital in response to a call that an individual had been 

assaulted at D Kay’s bar. He testified that he spoke with Clark who appeared to be 

disoriented and who indicated that he did not have much recollection of his injuries. 

Clark told the officer that when he stuck his hand out to shake appellant’s hand, he was 

struck in the face. Later on, Clark told Deputy Stocker that he thought that there had 

been a second assailant. Deputy Stocker testified that Clark was confused. 

{¶17} The next witness to testify was the victim, Clay Clark. Clark testified that 

on the evening in question, his relationship with appellant and the two women was 

cordial. He testified that he did not remember anything after he extended his hand to 

shake appellant’s hand and that he next remembered waking up on the concrete. He 

was unable to recall telling hospital personnel what had happened. Clark testified that 

he had never worked as a bouncer and did not remember saying that he did or that 
Tuscarawas County, Case No. 2014 AP 06 0021 6 

there were two assailants. When asked if he believed that there were two assailants, 

Clark indicated that he did not. 

{¶18} On cross-examination, Clark stated that he did not recall hearing appellant 

make some kind of whistle or commenting on the same. He also testified that he did not 

recall telling the doctor at the hospital that he had been assaulted before during multiple 

confrontations and had lost consciousness. He testified that he had not been in multiple 

other confrontations before in which he had been assaulted. 

{¶19} After the State rested, appellant called Dr. Allan Atienza, an emergency 

room doctor who consulted with Clark shortly after the incident. The doctor testified that 

Clark reported being attacked by two known males who kicked him in the head. On 

cross-examination, he testified that he concluded that Clark had intracranial 

hemorrhage and nasal bone fractures. He, when asked, testified that it was possible for 

someone with an intracranial hemorrhage to have confusion issues and memory 

problems. 

{¶20} Appellant testified on his own behalf. He refuted saying to the bartender 

that he liked confrontation. Appellant also testified that after he whistled for Kimberly 

Taylor to leave, Clark became “very agitated and he stood up and you could hear his 

raised voice, he said,....’is he really gonna fuckin whistle for you like dogs?’” Transcript 

at 403. He further testified that before he reached the car, he heard the bartender yell 

to come back and “’Don’t be disrespectful like that. Come back here’.” Transcript 405. 

According to appellant, he was almost to his car when he felt a pressure on the left side 

of his head and turned around swinging blindly, striking Clark. He stated that he did not 

know that it was Clark at the time. When asked, he stated that Clark had not given him 
Tuscarawas County, Case No. 2014 AP 06 0021 7 

any problems that evening and that he was surprised that Clark hit him on the back of 

his head. 

{¶21} At the conclusion of the evidence and the end of deliberations, the jury, on 

April 9, 2014, found appellant guilty of felonious assault. Pursuant to a Judgment Entry 

filed on May 28, 2014, appellant was sentenced to four years in prison. 

{¶22} Appellant now raises the following assignment of error on appeal: 

{¶23} THE TRIAL COURT ERRED IN ALLOWING TESTIMONY THAT 

APPELLANT HAD BRAGGED ABOUT BEING A FIGHTER, AS SAID TESTIMONY 

WAS IMPROPER CHARACTER EVIDENCE UNDER EVIDENCE RULE 404(A) AND 

(B) AND IRRELEVANT UNDER EVIDENCE RULE 402. 

{¶24} THE JURY’S VERDICT OF GUILTY WAS BASED ON SUFFICIENT 

EVIDENCE. 

{¶25} THE JURY’S VERDICT OF GUILTY WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

I 

{¶26} Appellant, in his first assignment of error, argues that the trial court erred 

in allowing testimony that appellant had bragged about being a fighter since such 

testimony was improper character evidence under Evid. R. 404(A) and (B) and 

irrelevant under Evid.R. 402. 

{¶27} The admission or exclusion of evidence is a matter left to the sound 

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 

(1987). Absent an abuse of discretion resulting in material prejudice to the defendant, a 

reviewing court should be reluctant to interfere with a trial court's decision in this regard. 
Tuscarawas County, Case No. 2014 AP 06 0021 8 

State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). Our task is to look at 

the totality of the circumstances and determine whether the trial court acted 

unreasonably, arbitrarily, or unconscionably in allowing or excluding the disputed 

evidence. State v. Rogers, 5th Dist. Richland No. 07 CA 106, 2008-Ohio-6630, ¶ 17, 

citing State v. Oman, 5th Dist. Stark No. 1999CA00027, 2000 WL 222190 (Feb. 14, 

2000). 

{¶28} Evid.R. 404(A) provides that evidence of a person's character is not 

admissible to prove the person acted in conformity with that character. Evid. R. 404(B) 

sets forth an exception to the general rule against admitting evidence of a person's 

other bad acts. The Rule states: 

{¶29} “Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that he acted in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake or accident.” 

{¶30} We concur with appellee that testimony that appellant bragged about liking 

to fight on the night in question is not evidence of appellant’s character or evidence of a 

bad act. Rather, such testimony related to statements made by appellant to witnesses 

on the night in question. With respect to Evid.R. 404(B), at trial, defense counsel himself 

conceded at one point that he did not believe that Evid.R. 404(B) was applicable. 

Moreover, assuming that such rule is applicable and that appellant’s comments were 

evidence of other crimes, wrongs, or acts, we find that such evidence falls within the 

exception set forth in Evid.R. 404(B). Appellant was convicted of felonious assault 

pursuant to R.C. 2903.11(A). Such section states as follows: (A) No person shall 
Tuscarawas County, Case No. 2014 AP 06 0021 9 

knowingly do either of the following: (1) Cause serious physical harm to another or to 

another's unborn;..” (Emphasis added). 

{¶31} In the case sub judice, appellant testified that he thought that someone 

had hit him and that he swung blindly, striking Clark. Appellant’s statements that he 

liked to fight and was a “bad ass” were relevant to prove that appellant had guilty 

knowledge and that appellant did not mistakenly or accidentally strike the victim in this 

case. Finally, assuming, arguendo, that the admission of appellant’s statements was in 

error, we find that appellant was not prejudiced by the admission of the same. Two 

witnesses (Nalley and Taylor) and the victim all testified that appellant assaulted the 

victim without provocation. 

{¶32} Appellant’s first assignment of error is, therefore, overruled. 

II, III 

{¶33} Appellant, in his second and third assignments of error, argues that his 

conviction for felonious assault was against the sufficiency and manifest weight of the 

evidence. We disagree. 

{¶34} The legal concepts of sufficiency of the evidence and weight of the 

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio 

St.3d 380, 1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard 

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which 

the Ohio Supreme Court held, 

 An appellate court's function when reviewing the 

sufficiency of the evidence to support a criminal conviction is 
Tuscarawas County, Case No. 2014 AP 06 0021 10 

to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the 

average mind of the defendant's guilt beyond a reasonable 

doubt. The relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements 

of the crime proven beyond a reasonable doubt. 

{¶35} In determining whether a conviction is against the manifest weight of the 

evidence, the court of appeals functions as the “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the 

evidence and ordering a new trial should be reserved for only the “exceptional case in 

which the evidence weighs heavily against the conviction.” Id.

{¶36} Appellant was convicted of felonious assault in violation of R.C. 

2903.11(A) which provides, in relevant part, as follows “No person shall knowingly do 

either of the following: (1) Cause serious physical harm to another ...” Based on the 

testimony set forth in detail in the statement of facts above, we find that, after viewing 

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

have found that appellant knowlingly caused physical harm to Clark. 
Tuscarawas County, Case No. 2014 AP 06 0021 11 

{¶37} We further find that the jury did not lose its way in convicting appellant. 

While appellant contends that the testimony of the witnesses was not credible and was 

contradictory, the jury, as trier of fact, was in the best position to assess credibility. 

Appellant further maintains that the victim’s testimony was questionable because he 

was unable to recall what had happened when appellant allegedly struck him and told 

medical personnel things (i.e. that he was a bouncer) that were clearly untrue or were 

contradicted by other testimony. However, we note that, at trial, there was medical 

testimony that the victim’s confusion and memory loss could result from loss of 

consciousness. 

{¶38} Based on the foregoing, appellant’s second and third assignments of error 

are overruled. 

{¶39} Accordingly, the judgment of the Tuscarawas County Court of Common 

Pleas is affirmed. 

By: Baldwin, J. 

Gwin, P.J. and 

Farmer, J. concur.