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Date: 06-17-2021
Case Style:
STATE OF OHIO v. CRONIE W. LLOYD
Case Number: 109128
Judge: EILEEN T. GALLAGHER
Court: COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Katherine Mullin and Brandon Summers,
Assistant Prosecuting Attorneys
Defendant's Attorney:
Description:
Cleveland, Ohio - Criminal defense attorney represented Cronie W. Lloyd with murder and felonious assault charges.
In February 2019, Lloyd was named in a two-count indictment,
charging him with murder in violation of R.C. 2903.02(B), and felonious assault in
violation of R.C. 2903.11(A)(1), with notice of prior conviction and repeat violent
offender specifications. The indictment stemmed from allegations that Lloyd, then
48 years old, caused the death of the 83-year old victim, Gary Power (“Power”),
during the commission of a felonious assault offense. Lloyd pleaded not guilty to
1 Although the offense of voluntary manslaughter is identified in the third
assignment of error, Lloyd has not presented an argument concerning the applicability of
the offense in his appellate brief. the offenses and the matter proceeded to a jury trial where the following facts were
adduced.
On February 3, 2019, Lloyd and Power were involved in a minor traffic
accident while leaving a bar located in Independence, Ohio. The men pulled their
vehicles into a nearby gas station, where they proceeded to engage in a verbal
argument. During the verbal dispute, the men made gestures towards their vehicles
and assessed the damage caused by the accident. The men were standing several
feet apart when Power began walking towards the rear of his vehicle. As Power
walked past Lloyd, Lloyd suddenly threw a single punch, without warning, that
connected with Power’s jaw. Power immediately lost consciousness and fell to the
ground, striking his head on the concrete. Lloyd unsuccessfully attempted to throw
a second punch as Power was falling to the ground. The incident, which lasted less
than two minutes, was captured by nearby surveillance cameras.
Lloyd quickly fled the scene without rendering aid or calling 911. Officer
Everett Haworth (“Officer Everett”) of the Independence Police Department
testified that he was patrolling the area when he observed Lloyd’s vehicle pull out of
the gas station at a high rate of speed. Upon observing Lloyd drive through a red
light, Officer Haworth activated his overhead lights and attempted to initiate a traffic
stop of Lloyd’s vehicle. Lloyd, however, ignored Officer Haworth’s siren and
“continued to accelerate.” (Tr. 170.) Officer Haworth explained that he decided to
terminate his pursuit of Lloyd’s vehicle because he received a radio broadcast to
respond to an altercation that was taking place in the parking lot of a nearby Denny’s restaurant. Officer Haworth stated that he prioritized the “40-person brawl” over
Lloyd’s traffic violations.
After resolving the purported conflict in the Denny’s parking lot, Officer
Haworth noticed that there was a vehicle parked at the gas station where his pursuit
of Lloyd’s vehicle had begun. Upon further investigation, Officer Haworth observed
“an older white male,” later identified as Power, “laying on the pavement.” (Tr. 171.)
Power was unconscious and had a large laceration on the back of his head. Officer
Haworth immediately called for an ambulance, and Power was transported to a
nearby hospital. Power was pronounced dead two days after sustaining his injuries.
Officer Haworth testified that he then made contact with the gas station
attendant and obtained permission to review the gas station’s security video footage.
Based on his review of the video footage, Officer Haworth determined that a crime
had occurred and that it was necessary to secure the scene and Power’s vehicle.
Relevant to this appeal, Officer Haworth testified that he collected a cigarette that
was found near Power’s body. Officer Haworth explained that he “believe[d] that
the cigarette may have fallen from either the suspect or the victim.” (Tr. 178.)
Sergeant Michael Murphy (“Sgt. Murphy”) of the Independence Police
Department testified that he was assigned to investigate the incident. In the course
of his investigation, Sgt. Murphy photographed Power in the hospital, spoke with
Power’s relatives, and reviewed surveillance footage recovered from the gas station
and the bar where Lloyd and Power had been prior to the traffic accident. Following
Power’s death, the investigating officers submitted physical evidence to the crime laboratory for forensic testing, including the cigarette recovered from the scene and
swabs taken from areas of Power’s vehicle that Lloyd had touched to regain his
balance after punching Power.
Andrea Davis (“Davis”), a forensic scientist with the Ohio Bureau of
Criminal Investigation, testified that the cigarette and a swab taken from the
passenger’s side door of Power’s vehicle contained a profile that was consistent with
Lloyd’s DNA. In addition, the investigating officers confirmed that Lloyd was the
owner of a vehicle that was the same color, make, and model as the vehicle depicted
on the surveillance video footage.
Dr. David Dolinak, M.D. (“Dr. Dolinak”), provided extensive
testimony regarding Power’s medical history and the scope and nature of his
injuries. Based on his review of the relevant medical records, Dr. Dolinak testified
that Power sustained extensive head injuries, including fractures of his skull and
bleeding and bruising in his brain. Dr. Dolinak explained that the initial impact to
the left side of Power’s jaw cause him to “fall to the ground hard enough to hit his
head fairly hard on the ground.” (Tr. 428.) Based on the nature and extent of his
injuries, Dr. Dolinak opined, to a reasonable degree of medical certainty, that
Power’s cause of death was a blunt force head injury and that the manner of death
was a homicide.
At the conclusion of trial, Lloyd was found guilty of murder and
felonious assault as charged in the indictment. He was sentenced to life in prison
with the possibility of parole after 15 years. Lloyd now appeals from this convictions and sentence.
II. Law and Analysis
A. Removal of Juror
In his first assignment of error, Lloyd argues he was denied due
process of law and the right to a fair and impartial jury when the trial court
improperly permitted the state to remove Juror No. 7 for cause. Lloyd contends that
there was not good cause shown for the removal of the juror for bias and, therefore,
the state was essentially provided with an additional peremptory challenge than
provided under law.
Defendants in criminal prosecutions are guaranteed the right to a trial
by an impartial jury through the Due Process Clause of the Fourteenth Amendment
and Sixth Amendment to the United States Constitution, as well as the Ohio
Constitution, Article I, Section 10. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct.
1444, 20 L.Ed.2d 491 (1968). Due process requires “an impartial trier of fact—‘a jury
capable and willing to decide the case solely on the evidence before it.’” McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663
(1984), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78
(1982). “Voir dire examination serves to protect that right by exposing possible
biases, both known and unknown, on the part of potential jurors.” Id.
The Rules of Criminal Procedure regulate the number and manner of
exercising peremptory challenges. Crim.R. 24(D) and (E). Peremptory challenges
provide both a defendant and the state an opportunity to dismiss potential jurors for any reason, except for an impermissible basis such as race or gender, without inquiry
and without the trial court’s approval. See Crim.R. 24(D); see also State v. Reynolds,
80 Ohio St.3d 670, 675, 687 N.E.2d 1358 (1998). To ensure that the parties are
equally able to employ peremptory challenges, Crim.R. 24 mandates that they
receive the same number of peremptory challenges.
Challenges for cause permit the parties to reject jurors on narrowly
specified bases that must be demonstrated in the record and found by the trial court.
Crim.R. 24(C). A prospective juror may be challenged for cause if he or she
demonstrates bias toward the defendant or the state. R.C. 2945.25(B); Crim.R.
24(C)(9). Moreover, pursuant to R.C. 2313.17(B)(9), a potential juror may be
challenged for cause if the person “discloses by the person’s answers that the person
cannot be a fair and impartial juror or will not follow the law as given to the person
by the court.”
The trial court has broad discretion in determining a juror’s ability to
be impartial. State v. Nields, 93 Ohio St.3d 6, 20, 752 N.E.2d 859 (2001).
Resolution of the impartiality issue rests in large part on the trial court’s assessment
of the juror’s credibility and demeanor, and the context in which the issue arises.
Skilling v. U.S., 561 U.S. 358, 386, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); State v.
Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). Therefore, a reviewing court
will defer to the trial judge who sees and hears the juror. See, e.g., Chang v.
Cleveland Clinic Found., 8th Dist. Cuyahoga No. 82033, 2003-Ohio-6167, ¶ 6. We review the trial court’s decision on whether to remove a juror for
cause for an abuse of discretion. State v. Smith, 80 Ohio St.3d 89, 105, 684 N.E.2d
668 (1997). “A court abuses its discretion when a legal rule entrusts a decision to a
judge’s discretion, and the judge’s exercise of that discretion is outside of the legally
permissible range of choices.” State v. Hackett, Slip Opinion No. 2020-Ohio-6699,
¶ 19, citing U.S. v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 372, 81 S.Ct. 1243,
6 L.Ed.2d 318 (1961) (Frankfurter, J., dissenting). Abuse-of-discretion review is
deferential and does not permit an appellate court to simply substitute its judgment
for that of the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 34.
In this case, Juror No. 7 indicated that her nephew had previously
been convicted of a felony offense in Cuyahoga County. The juror expressed her
belief that her nephew was “unfairly convicted” and endured an unfair prosecution.
(Tr. 70; 73.) In response to her statements, the prosecutor asked Juror No. 7
whether she believed she could be fair to the state of Ohio. The juror indicated that
she could not be fair because she was still upset about the state’s role in her nephew’s
criminal conviction. (Tr. 74.) When asked by defense counsel if she could listen to
the evidence and render a fair decision, the juror responded, “probably.” (Tr. 75.)
At the conclusion of voir dire, the state sought to remove Juror No. 7 for good cause.
The trial court granted the state’s request, finding that Juror No. 7 “clearly can’t be
fair.” (Tr. 141.) After careful review of the voir dire transcript, we are unable to
conclude that the trial court abused its discretion by excusing Juror No. 7 for cause.
Juror No. 7’s answers to the state’s questions gave reasonable cause for concern that
she could not be fair and impartial, supporting a valid challenge under R.C. 2313.17.
Moreover, and without addressing the implications of a “principal challenge” as
defined under R.C. 2913.17(B)(9) and (C),2 we are not persuaded by Lloyd’s
contention that Juror No. 7 was sufficiently rehabilitated by defense counsel.
Although defense counsel attempted to demonstrate that Juror No. 7 was capable of
applying the law to the facts of this case, the prospective juror declined to state with
certainty that she could be fair and impartial, and maintained her position that
“people lie” and “get away with stuff.” (Tr. 75.) Under these circumstances, we find
the record supports the trial court’s dissatisfaction with defense counsel’s attempt
2 R.C. 2313.17, provides, in relevant part:
The following are good causes for challenge to any person called as a juror:
* * *
(9) That the person discloses by the person’s answers that the person cannot
be a fair and impartial juror or will not follow the law as given to the person
by the court.
(C) Each challenge listed in division (B) of this section shall be considered as
a principal challenge, and its validity tried by the court.
Id. See Hunt v. E. Cleveland, 2019-Ohio-1115, 128 N.E.3d 265, ¶ 34 (8th Dist.) (finding
“a challenge under R.C. 2313.17(B)(9) is a ‘principal challenge.’”); see also Cordova v.
Emergency Professional Servs., 2017-Ohio-7245, 96 N.E.3d 906, ¶ 27 (8th Dist.)
(“[W]here a party establishes the existence of facts supporting a principal challenge, this
finding ‘result[s] in automatic disqualification,’ and no rehabilitation of the potential
juror can occur.”). to show that Juror No. 7’s expressed biases would not substantially impair the
performance of her duty.
Lloyd’s first assignment of error is overruled.
B. Ineffective Assistance of Counsel
In his second and third assignments of error, Lloyd argues defense
counsel rendered ineffective assistance of counsel by (1) failing to request a jury
instruction on the lesser-included offenses of assault and involuntary manslaughter,
and (2) by failing to request a jury instruction on the inferior offense of aggravated
assault.
The lesser-included-offense doctrine is codified in Ohio law in R.C.
2945.74 and Crim.R. 31(C), which are substantially similar. R.C. 2945.74 provides,
in relevant part:
When the indictment or information charges an offense, including
different degrees, or if other offenses are included within the offense
charged, the jury may find the defendant not guilty of the degree
charged but guilty of an inferior degree thereof or lesser-included
offense.
See also Crim.R. 31(C).
A lesser-included offense is one in which
(i) the offense carries a lesser penalty than the other; (ii) the greater
offense cannot, as statutorily defined, ever be committed without the
lesser offense, as statutorily defined, also being committed; and (iii)
some element of the greater offense is not required to prove the
commission of the lesser offense.
State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph three of the
syllabus. By contrast, “an offense is an ‘inferior degree’ of the indicted offense where its elements are identical to or contained within the indicted offense, except for one
or more additional mitigating elements.” Id. at paragraph two of the syllabus.
Generally, “a charge on a lesser-included or inferior offense is
required only where the evidence presented at trial would reasonably support both
an acquittal on the crime charged and a conviction upon the lesser-included or
inferior offense.” State v. Carter, 2018-Ohio-3671, 119 N.E.3d 896, ¶ 59 (8th Dist.),
citing State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of
the syllabus. In determining whether a lesser-included or inferior offense
instruction is appropriate, the trial court must view the evidence in the light most
favorable to the defendant. Id. at ¶ 59, citing State v. Monroe, 105 Ohio St.3d 384,
2005-Ohio-2282, 827 N.E.2d 285, ¶ 37. An instruction is not warranted, however,
every time “some evidence” is presented on a lesser-included or inferior offense.
State v. Smith, 8th Dist. Cuyahoga No. 90478, 2009-Ohio-2244, ¶ 12, citing State v.
Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).
To require an instruction * * * every time some evidence, however
minute, is presented going to a lesser-included (or inferior-degree)
offense would mean that no trial judge could ever refuse to give an
instruction on a lesser-included (or inferior-degree) offense.
Id., quoting Shane at 633. Thus, a court must find there is sufficient evidence to
allow a jury to reasonably reject the greater offense and find the defendant guilty on
the lesser-included or inferior offense. Shane at 632-633.
Relevant to this case, the parties do not dispute that the misdemeanor
offense of assault in violation of R.C. 2903.13(A) is a lesser-included offense of felonious assault. See State v. Addison, 8th Dist. Cuyahoga No. 96514, 2012-Ohio260, ¶ 34, citing State v. Caster, 8th Dist. Cuyahoga No. 87783, 2006-Ohio-6594.
The charge of simple assault requires a person to knowingly cause physical harm as
opposed to the element of serious physical harm required for felonious assault. In
addition, this court has recognized that the offense of involuntary manslaughter is a
lesser-included offense of murder in violation of R.C. 2903.02. State v. Johnson,
8th Dist. Cuyahoga No. 108621, 2020-Ohio-2940, ¶ 42, citing State v. Lynch, 98
Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 79; State v. Thomas, 40 Ohio
St.3d 213, 533 N.E.2d 286 (1988), paragraph one of the syllabus.
In turn, although the offense of aggravated assault is not a lesserincluded offense of felonious assault, it is an inferior-degree offense. Deem, 40 Ohio
St.3d 205, at 210-211, 533 N.E.2d 294 (1988). Aggravated assault is an inferiordegree offense of felonious assault because the elements of the two crimes are
identical except that aggravated assault contains the additional mitigating element
of serious provocation. Id. Thus, the difference between the elements of aggravated
and felonious assault is provocation involving sudden passion or fit of rage. State v.
McDuffie, 8th Dist. Cuyahoga No. 100826, 2014-Ohio-4924, ¶ 22.
Provocation, to be serious, must be reasonably sufficient to bring on
extreme stress and the provocation must be reasonably sufficient to
incite or to arouse the defendant into using deadly force. In
determining whether the provocation was reasonably sufficient to
incite the defendant into using deadly force, the court must consider
the emotional and mental state of the defendant and the conditions and
circumstances that surrounded him at the time. State v. Mabry, 5 Ohio App.3d 13, 449 N.E.2d 16 (8th Dist.1982), paragraph five of
the syllabus.
In Shane, 63 Ohio St.3d 630, 590 N.E.2d 272, the Supreme Court
elaborated on what constitutes “reasonably sufficient” provocation in the context of
voluntary manslaughter. First, an objective standard must be applied to determine
whether the alleged provocation is reasonably sufficient to bring on a sudden
passion or fit of rage. That is, the provocation must be “sufficient to arouse the
passions of an ordinary person beyond the power of his or her control.” Id. at 635.
If this objective standard is met, the inquiry shifts to a subjective standard, to
determine whether the defendant in the particular case “actually was under the
influence of sudden passion or in a sudden fit of rage.” Id. at 634-635.
With the foregoing standards in mind, Lloyd argues the evidence
adduced at trial warranted additional jury instructions on the applicable lesserincluded and inferior-degree offenses. Because defense counsel failed to request the
jury instructions, Lloyd contends he was denied his constitutional right to effective
assistance of counsel. To establish ineffective assistance of counsel, the defendant
must demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. In Ohio, a licensed attorney is presumed to be competent. State v.
Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial
counsel’s performance, appellate review is highly deferential as there is a strong
presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance. Strickland at 689. Appellate courts are not permitted to
second-guess the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d
545, 558, 651 N.E.2d 965 (1995). Even instances of debatable strategy very rarely
constitute ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1,
10, 514 N.E.2d 407 (1987).
Relevant to the circumstances presented in this case, it is well settled
that there is a presumption that “the failure to request an instruction on a lesserincluded offense constitutes a reasonable ‘all or nothing’ trial strategy.” State v.
Lewis, 8th Dist. Cuyahoga No. 108463, 2020-Ohio-5265, ¶ 51, quoting State v.
Jackson, 6th Dist. Sandusky No. S-15-020, 2016-Ohio-3278, ¶ 20. “By not
requesting an instruction on a lesser-included offense, the hope is that the jury will
acquit the defendant if the evidence does not support all the elements of the offense
charged.” Id. at ¶ 52, citing State v. Vogt, 4th Dist. Washington No. 17CA17, 2018-
Ohio-4457, ¶ 119 (“It would have been inconsistent to argue for complete acquittal
while at the same time arguing for the lesser-included offense.”); State v. Viers, 7th
Dist. Jefferson No. 01JE19, 2003-Ohio-3483, ¶ 47 (Trial courts tend to overrule
[ineffective assistance] arguments based upon reviewing court’s deference to the allor-nothing trial strategy.); State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d 764 (1996) (“Failure to request instructions on lesser-included offenses is a matter of
trial strategy and does not establish ineffective assistance of counsel.”).
Regarding the applicable lesser-included offenses, Lloyd argues
defense counsel rendered ineffective assistance of counsel by failing to request a jury
instruction on assault and involuntary manslaughter because the state failed to
establish that he knowingly caused the victim serious physical harm. This argument
fails to overcome the presumption that defense counsel made a tactical decision to
seek an acquittal rather than a conviction on a lesser-included offense. Similar to
the sufficiency of the evidence arguments posed in Lloyd’s fifth assignment of error,
defense counsel argued throughout closing arguments that the nature and breadth
of Lloyd’s conduct in this case could not support the necessary elements of felonious
assault and felony murder. While defense counsel did not dispute that Lloyd struck
Power, she reiterated that Lloyd landed a single punch and could not have acted
knowingly or otherwise anticipated the serious physical harm that resulted from the
impact of Power’s fall. We recognize that Lloyd believes that counsel’s theory of
defense was inadequate or impractical under the facts of this case. However, the
decision about which defense or theory to pursue at trial is a matter of trial strategy
“‘within the exclusive province of defense counsel to make after consultation with
his [or her] client.’” State v. Murphy, 91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001),
quoting Lewis v. Alexander, 11 F.3d 1349, 1354 (6th Cir.1993). Accordingly, we
cannot say counsel’s performance was deficient simply because she decided not to
request a lesser-included offense instruction. Furthermore, we are unable to conclude that defense counsel
rendered ineffective assistance of counsel by failing to request a jury instruction on
the inferior-degree offense of aggravated assault. Importantly, the test utilized to
determine if an instruction should have been given on an inferior-degree offense is
the same test used to determine if an instruction should have been given on a lesserincluded offense. Shane, 63 Ohio St.3d 630, at 632, 590 N.E.2d 272. In this case,
defense counsel argued during closing arguments that while Lloyd “was not
provoked,” the state failed to prove the necessary elements for a felonious assault
conviction beyond a reasonable doubt. Counsel argued that the single punch only
caused minimal injuries to Power’s jaw, while the unforeseen and unpredictable fall
was the ultimate cause of death.
Contrary to, and inconsistent with, defense counsel’s theory and
interpretation of the evidence, Lloyd now argues that a jury instruction on the
inferior-degree offense of aggravated assault was warranted in this case because the
evidence established that he acted in a sudden fit of rage that was provoked by the
victim and the circumstances surrounding the car accident. As stated, however,
defense counsel sought an acquittal in this case based upon her perception of the
state’s evidence; not a conviction on an inferior offense. See State v. Scarton, 8th
Dist. Cuyahoga No. 108474, 2020-Ohio-2952, ¶ 99; State v. Lenard, 8th Dist.
Cuyahoga Nos. 105342 and 105343, 2018-Ohio-4847, ¶ 18; State v. Carter, 8th Dist.
Cuyahoga No. 104653, 2017-Ohio-5573, ¶ 53-54 (Failing to request an instruction
on an inferior offense does not rise to the level of ineffective assistance of counsel where trial counsel’s strategy was to obtain an acquittal rather than a conviction of
an inferior offense.). Such a trial strategy, even if “questionable” or “if, in hindsight,
it looks as if a better strategy had been available,” does not support a claim of
ineffective assistance of counsel. See, e.g., State v. Cottrell, 4th Dist. Ross Nos.
11CA3241 and 11CA3242, 2012-Ohio-4583, ¶ 21; State v. Henderson, 7th Dist.
Mahoning No. 15 MA 0137, 2018-Ohio-2816, ¶ 71-73. Accordingly, we find Lloyd
has failed to overcome the presumption that defense counsel’s decision to forego an
inferior-degree-offense instruction was a strategic maneuver designed to obtain an
acquittal, instead of a conviction on an inferior-degree-offense. See, e.g., State v.
Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶ 73.
Lloyd’s second and third assignments of error are overruled.
C. Plain Error
In his fourth assignment of error, Lloyd argues the trial court
committed plain error when it failed to instruct the jury on the lesser-included and
inferior-degree offenses that were supported by the evidence.
Ordinarily, an appellate court reviews a trial court’s refusal to instruct
the jury on a lesser-included offense under the abuse of discretion standard. State
v. Henderson, 8th Dist. Cuyahoga No. 89377, 2008-Ohio-1631, ¶ 10, citing State v.
Wright, 4th Dist. Scioto No. 01 CA2781, 2002-Ohio-1462. As discussed, however,
Lloyd failed to request instructions on lesser-included or inferior-degree offenses.
Thus, our review of the trial court’s failure to sua sponte provide the disputed
instructions is limited to plain error. To establish plain error, a defendant must show that (1) there was an error or deviation from a legal rule, (2) the error was plain
and obvious, and (3) the error affected the outcome of the trial. State v. Barnes, 94
Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Notice of plain error “is to be taken with
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954
N.E.2d 596, ¶ 108.
In this assigned error, Lloyd reiterates his argument that a jury could
have reasonably found that his conduct against Power was provoked or,
alternatively, resulted in physical harm rather than serious physical harm. Thus,
Lloyd maintains that the trial court committed plain error by failing to provide jury
instructions on the inferior-degree offense of aggravated assault and the lesserincluded offenses of assault and involuntary manslaughter. Lloyd contends that the
“trial court’s failure to give the required instructions * * * led to a sentence that is
disproportionate to Lloyd’s conduct and morally incongruent with his conduct.”
After careful review, we find the circumstances presented in this case
are analogous to those addressed by the Ohio Supreme Court in State v. Clayton, 62
Ohio St.2d 45, 47-48, 402 N.E.2d 1189 (1980). In Clayton, the defendant was
charged with and convicted of two counts of attempted murder. Id. at 45. On
appeal, the defendant challenged trial counsel’s decision not to request a jury
instruction on the lesser-included offense of attempted voluntary manslaughter. Id.
at 46, 48-49. The Ohio Supreme Court held that the decision not to request the
mitigating instruction, despite being a “questionable” strategy, did not rise to the level of ineffective assistance of counsel. Id. at 48-49. Simply because there was
“another and better strategy available” did not mean that counsel provided
ineffective assistance. Id. at 49. In addition, the court found the trial court did not
commit plain error by failing to provide the jury instructions sua sponte. Noting
that trial counsel’s decision not to request an instruction on a lesser-included offense
was based on “counsel’s strategy to seek a total acquittal for [Clayton],” the court
held that a defendant “cannot claim the protections of Crim.R. 52(B) to negate the
effect of [a] tactical decision.” Id. at 47. The court explained as follows:
Even if the defendant did elicit some evidence of mitigating
circumstances (fit of anger), he still had the right to intentionally waive
a jury instruction on the lesser-included offense of attempted voluntary
manslaughter. Having elicited some evidence in mitigation of
attempted murder, the court had the duty to instruct on the lesserincluded offense, but this in no way affected defendant’s concomitant
right, through his counsel, to waive the instruction.
Id. at 47, fn. 2.
Since the release of Clayton, the Ohio Supreme Court has continued
to emphasize that the decision establishes “the consequences that follow a
defendant’s decision to waive a jury instruction that may have inured to his benefit.”
State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 31. In Wine,
the court reiterated the implications of the plain error doctrine and the deference
given to counsel’s trial strategy, stating:
In Clayton, this court held that defendant’s counsel’s decision not to
request an instruction on lesser-included offenses — seeking acquittal
rather than inviting conviction on a lesser offense — was a matter of
trial strategy. Id. This court essentially said in Clayton’s second
footnote that although the trial court erred in not including the lesser-included-offense charge, the defendant waived that error in
furtherance of his counsel’s trial strategy. Once the defendant made his
tactical gambit * * * he could not then successfully claim plain error
upon appeal. This court thus concluded that the trial court’s failure to
instruct the jury on lesser-included offenses and the defendant’s
subsequent conviction “[did] not amount to a manifest miscarriage of
justice and [was] not plain error.” Id. at 47-48. This court further
concluded that although his strategy was questionable, Clayton’s
counsel did not provide ineffective assistance. Id. at 49.
Wine at ¶ 30.
Thus, the Ohio Supreme Court has clarified that although “it is the
quality of the evidence offered * * * that determines whether a lesser-included
offense charge should be given to a jury,” Wine at ¶ 26, the court’s failure to provide
jury instructions on lesser-included or inferior-degree offenses does not amount to
plain error “[w]hen the decision not to request a particular jury instruction may be
deemed to be part of a reasonable trial strategy,” State v. Mohamed, 151 Ohio St.3d
320, 2017-Ohio-7468, 88 N.E.3d 935, ¶ 27, citing Clayton at 47-48. “Put differently,
a trial court does not commit plain error in failing to provide an unrequested jury
instruction where the decision to not request the instruction could be considered
trial strategy.” State v. Jones, 4th Dist. Ross No. 16CA3574, 2018-Ohio-239, ¶ 27,
citing Mohamed at ¶ 27.
Having determined that counsel’s decision not to request a jury
instruction on the lesser-included or inferior-degree offenses fell within a
reasonably trial strategy, we find the trial court did not commit plain error in failing
to provide the jury the unrequested instructions. Lloyd has failed to show that the
trial court’s judgment was obvious error, that it deviated from clear legal rules, or that it affected the outcome of the trial. See, e.g., State v. Kiehl, 11th Dist. Portage
No. 2015-P-0020, 2016-Ohio-8543, ¶ 30, citing State v. Hubbard, 10th Dist.
Franklin No. 11AP-945, 2013-Ohio-2735, ¶ 35; State v. McDowell, 10th Dist.
Franklin No. 10AP-509, 2011-Ohio-6815, ¶ 44, State v. White, 6th Dist. Lucas No.
L-06-1363, 2008-Ohio-2990, ¶ 56; State v. Miller, 6th Dist. Erie No. E-02-037,
2003-Ohio-6375, ¶ 17; State v. Harris, 129 Ohio App.3d 527, 533, 718 N.E.2d 488
(10th Dist.1998).
Moreover, even if this court were to ignore the deference afforded to
defense counsel’s trial tactics, we find the court’s failure to provide instructions on
the lesser-included and inferior-degree offenses did not amount to plain error based
on the evidence presented at trial.
As previously stated, the misdemeanor offense of assault is a lesserincluded offense of felonious assault. However, “when the victim suffers serious
physical harm, a misdemeanor assault under R.C. 2903.13(A) should not be
considered as a lesser-included offense of felonious assault.” State v. Koch, 2d Dist.
Montgomery No. 28000, 2019-Ohio-4099, ¶ 84, citing State v. Thornton, 2d Dist.
Montgomery No. 20652, 2005-Ohio-3744, ¶ 48; see also State v. Brisbon, 8th Dist.
Cuyahoga No. 105591, 2018-Ohio-2303, ¶ 27. Consistent with our discussion of the
evidence supporting Lloyd’s convictions below, we find the evidence presented at
trial demonstrated that Lloyd knowingly caused Power serious physical harm. Thus,
an acquittal on the felonious assault charge was not reasonable, and an instruction
for the offense of assault was not warranted. In the absence of a misdemeanor predicate offense, Lloyd’s argument concerning an instruction on the lesserincluded offense of involuntary manslaughter in violation of R.C. 2903.04(B)3 is
equally unsupported by the evidence. Accordingly, the trial court did not commit
error, plain or otherwise, by failing to instruct the jury on the lesser-included
offenses of assault and involuntary manslaughter.
Finally, we find there was insufficient evidence of serious provocation,
such that a jury could have reasonably acquitted Lloyd of felonious assault and
convict him of aggravated assault. Beyond speculation concerning the words
exchanged between Lloyd and Power, the record contains no evidence that Lloyd’s
actions were influenced by sudden passion or fit of rage at the time he punched
Power. Rather, the evidence presented at trial demonstrated that Lloyd suddenly,
and without warning, struck Power in his jaw as he attempted to walk past Lloyd
while inspecting his vehicle. Viewing the conditions and circumstances surrounding
the incident in their entirety, we find there is no evidence to conclude that Power’s
conduct was sufficient to arouse the passions of an ordinary person beyond the
power of his or her control. Counsel admitted as much during closing arguments.
Accordingly, Lloyd was not entitled to an instruction on aggravated assault.
Lloyd’s fourth assignment of error is overruled.
3 Involuntary manslaughter is defined in R.C. 2903.04(B) as: “No person shall
cause the death of another * * * as a proximate result of the offender’s committing or
attempting to commit a misdemeanor of any degree.” The intent required to commit
involuntary manslaughter is the intent assigned to the underlying offense. State v. Losey,
23 Ohio App.3d 93, 97, 491 N.E.2d 379 (10th Dist.1985). D. Sufficiency of the Evidence
In his fifth assignment of error, Lloyd argues his convictions for
felonious assault and felony murder are not supported by sufficient evidence.
“[T]he test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial.” State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. The state may use direct evidence, circumstantial
evidence, or both, in order to establish the elements of a crime. See State v. Durr,
58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Circumstantial evidence is “proof of facts
or circumstances by direct evidence from which the trier of fact may reasonably infer
other related or connected facts that naturally or logically follow.” State v. Seals,
8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, ¶ 32.
Lloyd was found guilty of murder in violation of R.C. 2903.02(B). The
statute provides, “[n]o person shall cause the death of another as a proximate result
of the offender’s committing or attempting to commit an offense of violence that is
a felony of the first or second degree and that is not a violation of section 2903.03
[voluntary manslaughter] or 2903.04 [involuntary manslaughter] of the Revised
Code.” In this case, Lloyd was found guilty of causing Power’s death while
committing felonious assault under R.C. 2903.11(A)(1), an offense of violence as defined by R.C. 2901.01(A)(9). R.C. 2903.11(A)(1) provides that, “[n]o person shall
knowingly * * * [c]ause serious physical harm to another * * * .”
To have acted “knowingly,” a person need not have specifically
intended to cause a particular result. “A person acts knowingly, regardless of
purpose, when the person 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). In other
words, a defendant acts knowingly when, although not necessarily intending a
particular result, he or she is aware that the result will probably occur.
If a result is a probable consequence of a voluntary act, the actor “‘will
be held to have acted knowingly to achieve it’” because a person “‘is charged by the
law with knowledge of the reasonable and probable consequences of his [or her] own
acts.’” State v. Dixon, 8th Dist. Cuyahoga No. 82951, 2004-Ohio-2406, ¶ 16, quoting
State v. McDaniel, 2d Dist. Montgomery No. 16221, 1998 Ohio App. LEXIS 2039,
16 (May 1, 1998); see also State v. McCurdy, 10th Dist. Franklin No. 13AP-321, 2013-
Ohio-5710, ¶ 16 (“‘[F]elonious assault under R.C. 2903.11, combined with the
definition of “knowingly” found in R.C. 2901.22(B), does not require that a
defendant intended to cause “serious physical harm,” but rather, that the defendant
acted with an awareness that the conduct probably would cause such harm.’”)
(emphasis deleted), quoting State v. Smith, 10th Dist. Franklin No. 04Ap-726,
2005-Ohio-1765, ¶ 28. “Stated another way, when a defendant voluntarily acts in a
manner that is likely to cause serious physical injury, the factfinder can infer that
the defendant was aware that his actions would cause whatever injury results from his actions, or, in other words, that he acted knowingly.” State v. Reed, 8th Dist.
Cuyahoga No. 89137, 2008-Ohio-312, ¶ 10. “‘To be actionable it is only necessary
that the result is within the natural and logical scope of risk created by the conduct.’”
State v. Hampton, 8th Dist. Cuyahoga No. 103373, 2016-Ohio-5321, ¶ 13, quoting
State v. Smith, 4th Dist. Ross No. 06CA2893, 2007-Ohio-1884, ¶ 29. The defendant
need not have known that his or her actions would cause the precise injury sustained
by the victim. See, e.g., State v. Perez, 8th Dist. Cuyahoga No. 91227, 2009-Ohio959, ¶ 42. Absent an admission, whether a defendant acted “knowingly” must be
determined “from all the surrounding facts and circumstances, including the doing
of the act itself.” Dixon at ¶ 16, quoting State v. Huff, 145 Ohio App.3d 555, 563, 763
N.E.2d 695 (1st Dist.2001).
“Serious physical harm,” as defined in R.C. 2901.01(A)(5), is very
broad and includes any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged
or intractable pain. Loss of consciousness, “‘irrespective of its duration,’” has been found to constitute
severe physical harm under R.C. 2901.01(A)(5)(c). State v. Watson, 10th Dist.
Franklin No. 17AP-834, 2018-Ohio-4964, ¶ 11, quoting State v. Sales, 9th Dist.
Summit No. 25036, 2011-Ohio-2505, ¶ 19.
Because Lloyd’s murder conviction is predicated on the underlying
felonious assault offense, Lloyd’s sufficiency argument focuses on the evidence
supporting his felonious assault conviction. On appeal, Lloyd does not dispute that
the state presented sufficient evidence that he caused serious physical harm to
Power. Rather, Lloyd argues that the state failed to present sufficient evidence that
he knowingly caused Power to suffer serious physical harm. Lloyd contends that “it
is simply not probable that serious physical harm would result from a single punch
to the jaw of Mr. Power.”
In support of his position, Lloyd relies on the Tenth District’s decision
in State v. McFadden, 10th Dist. Franklin No. 95APA03-384, 1995 Ohio App. LEXIS
5144 (Nov. 21, 1995). In McFadden, the defendant was convicted of felonious
assault after throwing one “blind-side punch” to the right side of the victim’s head.
Id. at 4, 12. The defendant and the victim were of “similar size and body weight” and
the defendant lacked any “boxing or fighting experience.” Id. at 11. The court
indicated that, under the circumstances of that case, while it was “reasonable to
assume that a person would expect one punch to cause physical harm to another
person,” it could not be said that “a reasonably prudent person would have been
aware that the throwing of one punch had the propensity to cause serious physical harm to another person.” Id. at 11-12. Accordingly, the court held that the evidence
was insufficient to convict the defendant of felonious assault. Id.
After careful consideration, we are unpersuaded by Lloyd’s reliance on
McFadden and his assertion that the decision created a bright-line rule precluding
a felonious assault conviction when an assailant with no fighting experience strikes
a victim with a single punch. As outlined above, the determination of whether an
assailant acted knowingly requires a review of all the facts and circumstances on a
case-by-case basis. Furthermore, since McFadden was decided in 1995, numerous
Ohio courts, including this court, have determined that a single punch to the head
or face can support a conviction for felonious assault even in the absence of evidence
that the assailant had fighting or boxing experience, or was more physically
imposing than the victim. See, e.g., State v. Jacinto, 8th Dist. Cuyahoga No. 108944,
2020-Ohio-3722, ¶ 107, citing State v. Watson, 10th Dist. Franklin No. 17AP-834,
2018-Ohio-4964, ¶ 16 (affirming felonious assault conviction where defendant
struck the victim “with a strong closed fist punch to the side of his head” with enough
force “that it knocked [the victim] to the ground, left him unconscious for an
extended period of time, and damaged his skull and brain”); State v. Eisenman, 10th
Dist. Franklin No. 17AP-475, 2018-Ohio-934, ¶ 11-12 (affirming felonious assault
conviction where defendant punched the victim once in the head with sufficient
force to “knock [the victim] out immediately”); Hampton, 8th Dist. Cuyahoga No.
103373, 2016-Ohio-5321, at ¶ 2, 14, 24, 27-28 (evidence of a single, forceful
intentional punch to the head could support the inference that defendant knowingly caused serious physical harm); State v. Westfall, 9th Dist. Lorain No. 10CA009825,
2011-Ohio-5011, ¶ 2, 10 (single punch to the victim’s face was sufficient to support
felonious assault conviction); State v. Shepherd, 11th Dist. Ashtabula No. 2003-A0028, 2006-Ohio-4315, ¶ 28 (one punch to the face with sufficient force to crack two
of the victim’s teeth was sufficient to support a conviction for felonious assault);
State v. Redman, 3d Dist. Allen No. 1-15-54, 2016-Ohio-860, ¶ 22 (“‘Punching
someone in the face satisfies the requisite culpable mental state for felonious
assault.’”), quoting State v. Beaver, 3d Dist. Union No. 14-13-15, 2014-Ohio-4995, ¶
37; State v. Vanover, 4th Dist. Lawrence No. 98CA38, 1999 Ohio App. LEXIS 2357,
14-15 (May 16, 1999) (“[T]he mere act of punching someone in the head area carries
with it the risk of causing serious physical harm. * * * Serious physical harm is
unquestionably a natural and logical consequence of punching, without warning or
provocation, an intoxicated person whose faculties are likely impaired.”).
In this case, the evidence adduced at trial showed that Lloyd, without
warning or provocation, punched Power on the left side of his jaw with a closed fist.
Power had no opportunity to brace himself and was knocked unconscious by the
impact of Lloyd’s blow. Power immediately fell to the ground and sustained severe
brain injuries. Although Lloyd may not have anticipated that Power would sustain
a serious brain injury, considering all the circumstances, it could be reasonably
inferred that Lloyd knew that some form of serious physical harm to Power was a
reasonable and probable consequence of his forceful punch to Power’s jaw. The
state did not have to prove that defendant intended to cause Power’s death, only that Lloyd knowingly caused serious physical harm. Hampton, 8th Dist. Cuyahoga No.
103373, 2016-Ohio-5321, at ¶ 28, citing State v. Irwin, 4th Dist. Hocking Nos.
03CA13 and 03CA14, 2004-Ohio-1129, ¶ 18.
Moreover, we are unpersuaded by Lloyd’s attempt to separate Power’s
injuries into two categories: (1) the minimal bruising to Power’s jaw that resulted
from the single punch, and (2) the significant head injuries sustained as a result of
his fall. Although Lloyd contends that he should be held responsible for the former
but not the latter, we reiterate that a defendant is responsible for the natural and
logical consequences of his conduct. Thus, “it is not necessary that the accused be
in a position to foresee the precise consequences of his conduct; only that the
consequence be foreseeable in the sense that what actually transpired was natural
and logical in that it was within the scope of the risk created by his conduct.” State
v. Smith, 4th Dist. Lawrence No. 94 CA 37, 1996 Ohio App. LEXIS 916, 22 (Mar. 6,
1996). Under the circumstances presented in this case, we find Power’s fall and
resulting head injuries were natural and logical consequences of Lloyd’s conduct in
punching the unsuspecting Power’s in his head area. See State v. Vanover, 4th Dist.
Lawrence No. 98CA38, 1999 Ohio App. LEXIS 2357, 14 (May 16, 1999) (“The victim
falling down and striking his head against the pavement are natural and logical
consequences of punching someone in the mouth.”).
Finally, we note that after Lloyd’s punch rendered Power motionless
on the ground, Lloyd simply fled the scene. Lloyd’s response to the immediate
impact of his punch could reasonably support the inference that he was “unsurprised by its severity” and that he was aware that his punch to Power’s jaw
would probably cause him serious physical harm. See Jacinto, 8th Dist. Cuyahoga
No. 108944 , 2020-Ohio-3722, at ¶ 110, citing Watson, 10th Dist. Franklin No. 17AP834, 2018-Ohio-4964, at ¶ 16.
Viewed in a light most favorable to the state, the evidence
demonstrated beyond a reasonable doubt that Lloyd knowingly caused serious
physical harm to Power that resulted in his death. Accordingly, we find there was
sufficient evidence supporting Lloyd’s conviction for murder and felonious assault.
Lloyd’s fifth assignment of error is overruled.
Outcome: Judgment affirmed.
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