COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60089 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION MICHAEL A. BUTTS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-248,158 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES P. MADDEN, ESQ. Cuyahoga County Prosecutor 20800 Center Ridge Road, #301 JACK HUDSON, ESQ. Rocky River, Ohio 44116 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Michael Butts, was indicted by the Cuyahoga County Grand Jury on one count of Murder in violation of R.C. 2903.02. The appellant was charged with unlawfully and purposely causing the death of Debra Murray on or about December 25, 1989. A bench trial commenced on May 21, 1990, appellant having waived his right to a trial by jury. On May 21, 1990, the trial court returned a verdict of not guilty as to murder but guilty as to the lesser included offense of involuntary manslaughter, R.C. 2903.04, an aggravated felony of the first degree. Appellant was thereafter sentenced to a minimum term of ten (10) years actual incarceration to a maximum term of twenty-five (25) years. Appellant filed a timely notice of appeal. A careful review of the record compels affirmance. I. Debra Murray ("the victim") and appellant met one another in their sophomore year at John F. Kennedy High School in or around 1970. The appellant moved into the victim's 19017 Nitra Avenue, Maple Heights, Ohio, residence in September 1988 when the victim was two months pregnant with appellant's child, where he remained until December, 1989. On December 24, 1989, appellant woke up at approximately 10:00 a.m. and spent almost the entire day with the victim and their nine-month-old son, Gerald. An argument developed between the victim and the appellant at some point about their holiday plans. The victim wished to spend Christmas Day at the home of - 3 - her sister's mother-in-law along with other members of her family. The appellant, on the other hand, wanted to visit with his mother and father, who was just released from the hospital. The argument caused the appellant to leave the house. The appellant went to the home of a friend, Derrick Mynaet, between 5:00 and 6:00 p.m. Mr. Mynaet, appellant and two other men drank a couple of beers. When Mr. Mynaet and the two men decided to go to a bar to have a couple of drinks, appellant chose to return to the victim's house in order to keep the "arguments down." Appellant arrived there between 9:00 and 9:30 p.m. He and the victim finished wrapping gifts and placing them under the Christmas tree when the victim repeated the earlier argument, adding that the appellant forgot to buy their son a rocking horse. At this point, "things just took off" with the victim accusing appellant of buying gifts for two daughters from previous relationships but forgetting their son. The appellant left the victim in the basement and went up to bed because he could not reason with her anymore. Tonea Goosby, the victim's sister, telephoned the victim throughout Christmas Eve day just like she did on every day with the last call occurring at approximately 11:30 p.m. The phone call lasted until about 11:55 p.m. Mrs. Goosby described the victim as going from a sad mood to a happy one when she talked of - 4 - her son, but she was also aware that the victim and the appellant argued that day about their plans for Christmas Day. The victim woke the appellant up a little later to continue the argument. The appellant after trying to discuss the conflict and reason with her, turned his back to her and went back to sleep. The victim then jumped on him, striking him on the back of his head. Appellant tried to subdue her by grabbing her hands but, when that failed, he grabbed her throat, pushed her over and held her down in an attempt to calm her down. The victim told the appellant that she was fine and to just leave her alone. The appellant did so, rolling over and falling back asleep. Artha M. Murray, the victim's mother, tried to call the victim between 7:30 and 8:00 a.m. on Christmas morning when she did not receive her usual phone call from her daughter. The victim always called her mother early each morning after being awakened by her son anywhere from 6:00 to 6:30 a.m. Ms. Murray allowed the phone to ring and ring but the call went unanswered by the victim, the appellant, or the answering machine. According to the appellant, he was awakened by his son at about 9:00 a.m. He tried to wake the victim up to tell her to get the baby. Unable to wake her, the appellant touched the victim to find her cold. He panicked, pulled himself out of bed, went to the baby and dressed himself and the baby. Rather than make any telephone calls from a number of phones in the home, one located at the victim's bedside, he went to his brother's home to drop off the baby, but finding his brother not at home, he - 5 - dropped the baby off at his parent's house. Appellant then went to the Maple Heights Police Station. The appellant was let into the station by the dispatcher at around 10:25 or 10:30 a.m. He informed the dispatcher, Nicholas Vah, that he wanted to report a crime, the dead body of his girlfriend. The dispatcher called an auxiliary officer, John Thomas, for assistance. He also radioed Sergeant Kosko, Officer Blount, and Patrolmen Lingo and Gomla. Officer Thomas spoke with the appellant and learned that the appellant and the victim had a fight. He also learned from appellant that the victim died between 1:00 and 2:00 a.m. and that he then went to sleep. Officer Thomas observed no injuries on the appellant. Patrolman William Gomla received a dispatch to return to the police station at approximately 10:30 a.m. on December 25, 1989 to clarify a matter. Upon his return, the officer found the appellant, sitting in a chair with his face in his hands, visibly shaken, distraught and upset. The appellant spoke of his girlfriend Debra and how she was dead at home. Patrolman Gomla, fearing a possible homicide, read the appellant his rights. The appellant then described the events of the prior evening and of how he returned home to an argument with the victim about his failure to purchase something for their son. The argument escalated so he attempted to suppress her by talking at first. This attempt failed and he went upstairs to bed so that he could ignore her by sleeping. The victim climbed into bed and - 6 - continued the argument. The appellant rolled over, and was struck in the back of the head by the victim. He crawled on top of her and struck her in the head and chest area with his fists. He also stated that he may have placed his hands on her neck. Patrolman Gomla observed no signs of injuries on the appellant or intoxication. Daniel Albert Kosko was working as the shift sergeant for the patrol division on December 25, 1989. He received a dispatch about a body on Nitra Avenue. He responded to the dispatch that he was going straight to the scene and instructed the dispatcher to contact Patrolman Gomla and tell him to return to the station to handle the complaint. Sergeant Kosko arrived at the victim's bungalow to find no vehicles in the driveway and no open doors. He accessed the house through an unlocked side door after knocking and receiving no response. He found no signs of tampering or breakage. He quickly looked around the lower level and went upstairs to find the victim's body on the bed. She was cool to the touch and had stiff joints. Finding no signs of life, the sergeant called for a rescue squad. Sergeant Kosko returned downstairs at which time Patrolman Blount arrived at the house. Officer Blount was advised to secure the scene and to take photographs at the direction and supervision of the sergeant. There was a small amount of blood on the elbow area of the victim's nightshirt. No other blood was - 7 - visible. Soon after, Patrolman Lingo and the rescue squad arrived with the coroner. Sergeant Kosko returned to the station at about 11:00 a.m. After introducing themselves, the appellant who appeared quiet told the sergeant of his relationship with the victim. The appellant, after receiving his rights and stating that he understood them, voluntarily engaged in a taped conversation with Sergeant Kosko. The sergeant noticed no signs of injuries, intoxication, or an impaired ability to communicate. Derrick Mynaet, a long time friend of the victim and appellant, learned of the victim's death on Christmas Day at Mrs. Goosby's mother-in-law's home. He telephoned the appellant two to three days later to arrange a meeting when they could discuss the death. The two met at the Academy Bar. Mr. Mynaet learned that when the appellant returned home on Christmas Eve, the victim started an argument with him. He went to bed. The victim followed and jumped on the appellant, hitting him. The appellant reached up and grabbed her throat. She fell to her side after he pushed her over and she was "crying or something." Mr. Mynaet received the impression that the appellant hit the victim hard from the appellant's statement that he "never hit a bitch like that before." The appellant then told Mr. Mynaet that he went downstairs to sleep and was reawakened by his son's crying the next morning. The appellant tried to wake the victim up but "he knew that she was dead." The appellant denied that he ever made - 8 - the statement testified to by Mr. Mynaet about never hitting "a bitch like that before" and that he slept downstairs. Dr. Robert Carroll Challener, Deputy Coroner for the Cuyahoga County Coroner's Office, performed the autopsy of the victim on December 26, 1989. An external examination revealed horizontal, curved areas of reddish discoloration on the right side of the victim's neck, towards the front which were characterized as areas of hemorrhage. Three scrapes were found on the left side of the neck, two on the back of the neck, one on her right thumb, and small scrapes were found on her forehead and below her lower lip. There was a distinct swelling of her right cheek and a scrape and torn skin on her right eyebrow. An examination of the membranes of her eyelid lining and eyes disclosed tiny hemorrhages into the membranes. The doctor testified that these hemorrhages are caused by various reasons but that their significance increases when associated with neck injury. The pinpoint hemorrhages in this instance demonstrates that pressure was applied to the neck. The doctor also discovered a bruise which measured from 3/8" to 1" in diameter on the left side of the victim's tongue and found it to be consistent with one's biting their own tongue. A tiny area of hemorrhage which measured up to 1/2" in diameter was also visible on the back, left side of the victim's voice box/larynx and another area of hemorrhage was found on the right and left sides of the intrinsic muscles. The cricoid or cartilage of the voice box contained fractures on the right and left side which occurred - 9 - when pressure was applied to that point. However, the victim would still have been able to speak if she had survived. Dr. Challener ruled that the cause of death was cervical compression or pressure to the neck and that it was a homicide. The doctor elaborated further during cross-examination that there was not a great deal of trauma both internally and externally, the trauma being toward the minimal. He could not state with certainty the length of time that was needed to cause the injuries by placing pressure on the neck, but he did state that there had to be a significant interval of time for the pressure to build in order to cause the hemorrhaging. Dr. Challener was also asked to explain the "coratid sleeper", a maneuver used by police officers. An arm is placed around the neck of another. The arm is then squeezed so that the blood supply to the brain is reduced or shut off, rendering the individual unconscious or possibly in extreme circumstances, causing death. However, if the hold is used properly, no damage results to the trachea or larynx. Sharon Rosenberg from the Trace Evidence Laboratory of the coroner's officer conducted tests of various items which were found at the victim's house. Blood was only found on one of the pillows taken from the bed. The victim belonged to the grouping, AB, of the blood. Two character witnesses testified on behalf of the appellant. James W. Lewis, the cousin of appellant's mother, and George L. Thornton both knew the appellant for most of his life. - 10 - They opined that the appellant was a lawful, honest person who could be believed under oath. Appellant's sole assignment of error provides: "THE VERDICT OF GUILTY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." The trial court found that appellant was not guilty of murder but that he was guilty of the lesser included offense of involuntary manslaughter since he "caused the death of Debra Murray as a proximate result of committing the offense of felonious assault, a felony." Appellant asserts that the evidence fails to support the trial court's finding that he committed a felonious assault for two reasons. First, there is no evidence that he had a deadly weapon or dangerous ordnance. Second, assuming arguendo that he caused serious physical harm to the victim, he asserts that the state failed to prove beyond a reasonable doubt that he knowingly caused serious physical harm to the victim. He thus argues that the verdict is against the manifest weight of the evidence. R.C. 2903.04(A) provides: "No person shall cause the death of another as a result of the offender's committing or attempting to commit a felony." The elements of the offense of felonious assault are set forth in R.C. 2903.11 which provides, in pertinent part, that: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, ***." - 11 - Pursuant to the language of R.C. 2903.11, the state is required to demonstrate that appellant "knowingly" caused serious physical harm to the victim. R.C. 2901.22(B) provides the following definition of "knowingly": "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." "'Knowledge' is cast in terms of an awareness of the probability that one's conduct will cause a certain result." State v. Smith (Feb. 27, 1986), Cuyahoga App. Nos. 50269, 50280, unreported, at 11. It is not necessary for the state to prove that a defendant acted with purpose or intent to convict him for a crime based upon knowledge as defined in R.C. 2901.22(B). State v. Linson (Oct. 19, 1989), Cuyahoga App. No. 56100, unreported, at 4, citing State v. Bissantz (1982), 3 Ohio App. 3d 108. The 6'3", 210 lb. appellant maintains that he grabbed the 5'2", 143 lb. victim by her throat for the sole purpose of calming her down. He asserts that there was no evidence to the contrary and there can be no inference that this activity would result in serious physical harm. According to the appellant, the victim's death was an accident. Dr. Challener offered the following testimony on the injuries inflicted upon the victim: "A. It would take a significant amount of pressure applied to that cricoid to cause it to break as it did on both sides. I would think it would be enough to - 12 - actually push it inward, put it inward, so that it exceeded its pliability so that it broke. * * * "A. The thing that was particularly striking about the findings in the neck area of Debra Murray, is the fracture of the cricoid. Although there was not a great deal of hemorrhage associated with that, there is no question that it would take a lot of force to produce that particular injury. "Q. Okay. When we talk about force, the force could come from a person that is applying the pressure and it could also come from the person that is resisting the hold, isn't that true? "A. That certainly would be a possibility. * * * "A. The injuries suggest that significant pressure was applied for a significant interval of time. It was long enough for pressure to build up within the head to produce the injuries that were visible in the membranes around the eye. * * * "Q. Let's assume as I have indicated to you before that Debra came into the bedroom, climbed up on top of her husband and began to fight him. He then turned around and reached up and grabbed her and threw her on the bed, and held her down, to calm her down. "Are the injuries consistent of that? "A. Not really. These injuries would have to be painful to break that cricoid cartilage, the way it was broken. It would take a lot of force. This would be very painful. I can't imagine myself pushing on that part of the voice box as hard as this would take, it would have to be very, very painful. * * * "A. It would be terribly painful, this wasn't just a matter of holding somebody down. This was with their hands right on the voice box, pushing hard enough to break that cartilage. "Q. That person is pushing back as well? - 13 - "A. I would think that they would try to escape. It would be painful. "Q. But are they, are the injuries consistent with that person being held down, just to calm them down? "A. I think they would be too painful to even consider that. * * *" The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court, when addressing whether a verdict is against the manifest weight of the evidence, reviews: "*** 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 [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Davis (1988), 49 Ohio App. 3d 109, 113. In the case sub judice, the state presented competent, credible evidence that appellant caused the victim's death as a proximate result of his application of force to her neck. The trier of fact could reasonably conclude that he committed a felonious assault. Hence, the trial court properly found him guilty of involuntary manslaughter. Appellant's assignment of error is accordingly overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., and WEAVER, J.*, CONCUR. SARA J. HARPER JUDGE *Judge Margaret K. Weaver, Sandusky County Common Pleas Court, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .