[Cite as State v. Green , 2021-Ohio-3260.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2020 CA 00178 : DION DAIZHON GREEN : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2020 CR 1612

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: September 16, 2021

For Plaintiff-Appellee: For Defendant-Appellant:

KYLE L. STONE D. COLEMAN BOND STARK COUNTY PROSECUTOR 116 Cleveland Ave. NW Suite 600 VICKI L. DESANTIS Canton, OH 44702 ASST. PROSECUTING ATTORNEY 110 Central Plaza South, Suite 510 Canton, OH 44702-1413[Cite as State v. Green , 2021-Ohio-3260.]

Delaney, J. {¶1} Defendant-Appellant Dion Daizhon Green appeals his convict ion and sentence by the Stark County Court of Common Pleas for one coun t of domestic violence, a first-degree misdemeanor in violation of R.C. 2919.25(A)(D)(2 ). Plaintiff-Appellee is the

State of Ohio.

FACTS AND PROC EDURAL HISTORY

Indictment {¶2} On October 19, 2020, the Stark County Grand Jury indicted DefendantAppellant Dion Daizhon Green on one count of felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2)(D)(1)(a); one count of viola ting a protection order, a third-degree felony in violation of R.C. 2919.27(A)(1)(B)(4); a nd one count of domestic violence, a first-degree misdemeanor in violation of R.C. 2919. 25(A)(D)(2). Green entered a plea of not guilty to the charges. {¶3} Prior to trial, the State dismissed Count Two of the indic tment, violating a protection order. The matter proceeded to a jury trial on Novem ber 16, 2020. The following evidence was adduced at trial.

The Witness {¶4} On July 12, 2020 at approximately 9:00 p.m., A.C. was driv ing south on Cleveland Avenue in Canton, Ohio, when he looked to his left an d saw “a guy just pounding a girl, punching her.” (T. 159-160). He saw the man wa s holding the woman by her hair and punching her in the head. (T. 167). A.C. pulled hi s car into a parking lot and jumped out of the car. As he walked towards the man and woman, the man got into a car and pulled away. (T. 162). A.C. asked the woman if she was okay and he described her[Cite as State v. Green , 2021-Ohio-3260.]

as hysterical and crying. (T. 162). A.C. walked back to his car to get his cell phone when he saw the man come back down the road, pull into the parking l ot at 15-20 mph, and to A.C.’s disbelief, hit the woman with the car. (T. 162-163). The woman had tried to move out of the way of the car, but it sideswiped her, causing her t o hit the ground and her purse to fly into the air. (T. 165). From A.C.’s vantage point, it appeared the man intentionally hit the woman with the driver’s front side of the car. (T. 164, 165). A.C. ran to the woman where she was laying on the ground. (T. 163). The man drove back into the parking lot and came towards them again when A.C. heard the man ask the woman to get into the car, but the man then exited the parking lot and d rove away. (T. 170). A.C. got his cell phone and called 911. (T. 164). The 911 call was p layed at trial and A.C. identified his voice as the caller. (T. 169). The police and an ambulance responded to the

scene. {¶5} A.C. described the car that he saw hit the woman as a “sma ller white car.” (T. 166). He did not get a good look at the driver of the car, but described the man as a skinny, young black male. (T. 166).

The Victim {¶6} On July 12, 2020, Green picked C.B. up from work in his ca r with their twoyear old child in the backseat. C.B. and Green had known each o ther for a decade, were in a relationship, and were the parents of the child. (T. 175-1 76). When C.B. got into the car, C.B. said that Green slapped her and threatened to kill he r. (T. 177). Green pulled the car into a parking lot by a car wash when C.B. got out of t he car, but Green pulled the back of her pant s. (T. 177) She pushed him and ran away and Gre en then hit her in the back of her head, after which she walked away from him. Green t hen punched her in the[Cite as State v. Green , 2021-Ohio-3260.]

head multiple times. (T. 177). She was walking away from Green when he hit her with the front driver’s side of his car. (T. 178, 180). When she was hit with the car, she flew into the air, but not really high, and fell on the ground. (T. 181). After she was hit the first time, she saw Green drive the car back into the parking lot where she believed he was going to hit her again, but he drove away. (T. 181). {¶7} C.B. testified she suffered injuries on her side and right arm. (T. 181-182). She declined care by the paramedics and went for medical treatm ent the next day but did not get a diagnosis. (T. 182). She took off three days of work because of the pain from her injuries. (T. 182). {¶8} After the incident, C.B. testified that Green sent her a l etter on September 25th. (T. 184). The letter was introduced as an exhibit where C .B. testified that she recognized the handwriting in the letter as Green’s handwriting . (T. 184). The letter was displayed for the jury and C.B. read the letter aloud: I miss you, sorry 4 reacting out of emotion!! You kno I love yo u girl on the real. To my beautiful son’s mother. * * * Forgive me beautiful I love you and miss you so much on the real. I f’g love you [C.B.] and I’m goi ng – I’m doing way better now. I’ve been sober for like 3 months now!!! And I hope and pray that you can find it in ya lil beautiful pure heart to for give me. I’m bein punished enough. (T. 184-185). The Police Report {¶9} On July 12, 2020, Officer George Grubisic with the City of Canton Police Department reported to an incident on Cleveland Avenue based on a call to dispatch[Cite as State v. Green , 2021-Ohio-3260.]

about a man striking a woman with his vehicle. When he arrived on the scene, he saw two witnesses and C.B. being treated by the paramedics. Officer Grubisic spoke with C.B. and she told him she was in pain. (T. 195). He did not take any pictures of C.B.’s injuries. (T. 203). {¶10} The witness and C.B. both told Officer Grubisic that Gree n intentionally stuck C.B. with his vehicle. (T. 200). One of the witnesses had taken a short video of the man’s vehicle leaving the scene. (T. 195). The vehicle was iden tified as a Chevy Sonic. (T. 195). Using the information from C.B. about the incident, O fficer Grubisic checked the LEADS system and determined that a Chevy Sonic was registered t o Green. (T. 197).

Conviction and Sentence {¶11} After the State rested, Green moved for dismissal pursuan t to Crim.R. 29. The trial court denied the motion. Green rested without present ing evidence and renewed

his Crim.R. 29 motion. The trial court denied the motion. {¶12} After deliberation, the jury returned a verdict finding G reen not guilty of Count One, felonious assault and guilty of Count Three, domesti c violence. {¶13} The trial court held a sentencing hearing on November 20, 2020. Via sentencing entry filed on November 30, 2020, Green was sentence d to 170 days of local incarceration at the Stark County Jail and granted 88 days of j ail time credit. {¶14} It is from this judgment that Green now appeals.[Cite as State v. Green , 2021-Ohio-3260.]

ASSIGNMENTS OF ERROR {¶15} Green raises two Assignments of Error: {¶16} “I. APPELLANT ASSERTS THE STATE FAILED TO PRESENT

SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION AGAINST THE APPELLA NT,

AND THE CONVICTION MUST BE REVERSED. {¶17} “II. APPELLANT ASSERTS HIS CONVICTION WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE

REVERSED.”

ANALYSIS {¶18} Green’s two Assignments of Errors are related and will be considered together. Green argues his conviction for domestic violence is not supported by the sufficiency of the evidence and is against the manifest weight of the evidence because there was no evidence of physical harm. We disagree. {¶19} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and “i n reviewing the entire record, weighs the evidence and all reasonable inferences, considers th e credibility of witnesses, and determines whether in resolving conflicts in evidence the j ury ‘clearly lost its way and created such a manifest miscarriage of justice that the convict ion must be reversed and

a new trial ordered.’” State v. Thompkins , 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). {¶20} An appellate court's function when reviewing the sufficie ncy of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime[Cite as State v. Green , 2021-Ohio-3260.]

proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).

Inconsistent Verdicts {¶21} In the instant case, Green was convicted of domestic viol ence pursuant to R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” The jury acquit ted Green of felonious assault, which states, “No person shall knowingly do either of the following: * * * (2) Cause or attempt to cause physical harm to another or to another's un born by means of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2). Green conten ds the domestic violence conviction is against the sufficiency and weight of th e evidence because it is inconsistent with the acquittal on the felonious assault count. He specifically argues that it is inconsistent that the jury found Green did not cause know ingly cause or attempt to cause physical harm by means of deadly weapon but found that Gr een knowingly caused or attempted to cause physical harm to a family member. {¶22} This Court has previously addressed seemingly inconsisten t verdicts. We have cited the Ohio Supreme Court's decision in State v. Lovejoy , 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997) at paragraph one of the syllabus, holding th at “several counts of an indictment containing more than one count are not interdependen t and an inconsistency in a verdict does not arise out of inconsistent responses to di fferent counts, but only arises out of inconsistent responses to the same count.” State v. Kelley , 5th Dist. Delaware No. 2006CA00371, 2007-Ohio-6517, ¶ 24 [inconsistent responses to di fferent counts do not create an inconsistency in the verdicts]. The jury may well hav e compromised in its decision. “An inconsistent verdict may very well be a result of leniency and compromise[Cite as State v. Green , 2021-Ohio-3260.]

by the jurors, rather than being caused by jury confusion.” State v. Fraley , 5th Dist. Perry No. 03CA12, 2004-Ohio-4898, ¶ 15, citing United States v. Powell , 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). See also, State v. Nesbitt , 5th Dist. Stark No. 2017CA00234, 2018-Ohio-4222, ¶ 31; State v. Carson , 5th Dist. Licking No. 18-CA-25, 2018-Ohio-5305, ¶ 45. {¶23} The “contradictory” jury verdicts in the instant case do not affect the validity

of Green’s conviction for domestic violence. In City of Brecksville v. Malone , 8th Dist. Cuyahoga No. 75466, 2000 WL 193232, *1 (Feb. 17, 2000), appeal not allowed, 89 Ohio St.3d 1451, 731 N.E.2d 1139 (2000), the Eighth District Court o f Appeals summarized Ohio's approach to inconsistent verdicts: It is well settled that the validity of a conviction does not d epend on consistency between verdicts on various counts of a multiple co unt indictment when a jury finds the defendant guilty of one or mor e offenses and not guilty on others even though the difference in the verd icts cannot rationally be reconciled. United States v. Powell , [469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) ]; Dunn v. United States , [284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) ]; Browning v. State , [120 Ohio St. 62, 165 N.E. 566 (1929) ] (inconsistency does not arise out of inconsis tent responses to different counts, but only arises out of inconsist ent responses to the same count). In declining to vacate seemingly inconsiste nt verdicts, the Ohio Supreme Court reasoned that the defendant received the benefit of the jury's mistake, compromise or lenity with regard to the acquittal, and[Cite as State v. Green , 2021-Ohio-3260.]

it is not unreasonable for the defendant to accept the burden o f the jury's

conviction. Id

. {¶24} We therefore decline in this case to vacate Green’s domes tic violence conviction simply because the jury acquitted him of felonious a ssault. Carson , supra , 2018-Ohio-5305 at ¶ 47 citing Nesbitt , supra , 2018-Ohio-4222 at ¶ 33, citing State v. King , 5th Dist. Guernsey No. 09 CA 000019, 2010-Ohio-2402, ¶ 34 [inco nsistent verdicts do not render conviction against manifest weight of evidence]; State v. Norman , 10th Dist. Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 14 [defendant convicte d of domestic violence but acquitted of assault, but inconsistency does not warrant re versal of conviction]; State

v. Burnett , 5th Dist. Stark No. 2016CA00007, 2016-Ohio-7502, ¶ 18, motion for delayed appeal denied, 148 Ohio St.3d 1441, 2017-Ohio-1427, 72 N.E.3d 6 56, citing State v.

Gardner , 118 Ohio St.3d 420, 2008–Ohio–2787 [verdict convicting defend ant of one crime but acquitting him of another may not be disturbed merely because the two findings are irreconcilable]; see also, State v. Wofford , 5th Dist. Stark No. 2013CA00186, 2014- Ohio-3122, ¶ 50, appeal not allowed, 141 Ohio St.3d 1474, 2015- Ohio-554, 25 N.E.3d 1080. As discussed below, the jury’s verdict for domestic viole nce is supported by the sufficiency and manifest weight of the evidence. Physical Harm {¶25} Green contends there was insufficient evidence as to phys ical harm to support the verdict for domestic violence. He bases his argumen t on the fact that the jury found he did not knowingly cause or attempt to cause physical h arm to C.B. with a deadly weapon or dangerous ordnance so a verdict finding physical harm against a family member should likewise be unsupported by the evidence. He argue s the State did not[Cite as State v. Green , 2021-Ohio-3260.]

produce direct evidence of physical harm to C.B. such as photog raphs of her injuries or a medical diagnosis of her injuries. {¶26} We find the evidence in this case supports a verdict for domestic violence. While Green was charged with felonious assault, which required the jury to determine that Green knowingly caused or attempted to cause physical harm to C.B. by means of a deadly weapon or dangerous ordnance (to-wit: a motor vehicle), the jury found the facts did not meet the elements of felonious assault as charged. The elements of the charge of domestic violence, however, are different from that of the c harge of felonious assault in this case. The State was required to prove beyond a reasonab le doubt that Green caused or attempted to cause physical harm to C.B. without cons ideration of a deadly weapon or dangerous ordnance. {¶27} C.B. testified that before Green allegedly hit her with h is car, he punched her in the head multiple times. A.C. testified that he witnesse d the man driving the smaller white car, later identified as Green, holding C.B. by the hair and punching her in the head to such an extent that A.C. was compelled to stop his car to in tervene. When A.C. reached C.B., she was hysterical and crying. Officer Grubisic testified the reports made by C.B.

and A.C. at the time of the inci dent were consistent that Green punched C.B. before he allegedly hit her with his car. After the incident, Green sent a letter to C.B., asking her to forgive him because he reacted out of emotion. The jury in this case found the testimony of C.B. and A.C. to be credible that Green knowingly caused or attempted to cause physical harm to C.B. by holding her by the hair and punching h er multiple times in the head, which is separate act from the incident with Green’s car.[Cite as State v. Green , 2021-Ohio-3260.]

{¶28} Viewing the evidence in a light most favorable to the Sta te, the State met its burden of production so that a reasonable person could find beyond a reasonable doubt that Green caused or attempted to cause physical harm to C.B. Further, the jury did not lose its way to create a manifest miscarriage of justic e when it found Green guilty of domestic violence. This is not the exceptional case in which the evidence weighs heavily against the conviction. {¶29} Green’s first and second Assignments of Error are overrul ed.

CONCLUSION {¶30} The judgment of the Stark County Court of Common Pleas is affirmed. By: Delaney, J., Hoffman, P.J. and Wise, John, J., concur.