Yes!

We find this evidence sufficient to satisfy the statutory requirement of temporary serious disfigurement.

 

State v. Hill

2023 – Ohio – 2109

Fifth District Appellate Court

Stark County, Ohio

June 26, 2023

 

Domestic Violence Goes on for Hours

This matter arose on May 21, 2022 when Mr. Vincent Hill and his step brother, Mr. Kent Clark returned from a night of drinking to a home they shared with the victim, J.S. Mr. Hill began an argument with J.S. which became physical. Mr. Hill slapped and punched J.S. about her head and shoulders and attempted to gouge her eyes out with his fingers. The beating went on for several hours. At one point Mr. Hill ordered Clark to slap J.S. and Clark did so, striking J.S with an open hand across the face a couple times. Mr. Hill then continued to assault J.S. and suggest that he was going to kill her. When J.S. tried to fight back, Mr. Hill kneed her in the stomach and crotch. J.S. believed she was going to die, but eventually Mr. Hill passed out and J.S. went to her room. J.S. experienced difficulty getting to her room because she could not see.

Incident is Reported to Canton Police

J.S. waited until sunrise and until she could see again to leave the house under the guise of going to work. She instead took a bus to the Canton Police Department where she reported the assaults. J.S. spoke with Canton Police Detective Phillip Johnson who took photos of her injuries. J.S.’s face was bruised and swollen. Her right eye was swollen nearly shut. Concerned that J.S. needed medical attention, Detective Johnson called a squad to transport J.S. to the hospital. At the hospital, J.S. received x-rays and a CAT scan which showed no fractures or concussion.

Daily Photos Taken of Victim’s Injuries

In addition to photos taken by Detective Johnson and the staff at the hospital, J.S. took daily photos of her injuries from May 22, 2022 through June 1, 2022. On June 1, she still had black eyes. Since the assaults, J.S has struggled with short-term memory loss, numbness in her arm, and blurry vision in one eye on and off. She was to receive physical therapy for her arm but has no insurance to pay for it. For the same reason, she was unable to address the other two issues.

Indictment

As a result of these events, on July 6, 2022 the Stark County Grand Jury returned an indictment charging Mr. Hill with one count of felonious assault and/or aiding and abetting felonious assault pursuant to R.C. 2903.11(A)(1).

Eight to Twelve Years in Prison

Mr. Hill elected to proceed to a jury trial wherein the above outlined testimony and physical evidence was presented by the state. Mr. Hill rested without presenting any evidence. After deliberating, the jury convicted Mr. Hill as charged. He was subsequently sentenced to eight to twelve years incarceration.

Mr. Hill timely filed an appeal and the matter is now before this court for consideration.

At issue is whether or not the victim’s bruising was a misdemeanor or a felony.

Complicity

Mr. Hill was convicted of complicity under O.R.C. §2923.03(A)(1). That section states in relevant part:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

(1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense;

Felonious Assault

O.R.C. §2903.11(A)(1) provides in relevant part:

(A) No person shall knowingly do either of the following: (1) Cause serious physical harm to another.

Was the Assault a Misdemeanor or a Felony?

Mr. Hill does not deny he either committed or was complicit to an assault. Rather, he argues because J.S.’s only officially documented injuries consisted of just bruising, the state did not prove serious physical harm and therefore failed to prove felonious assault.

How is Serious Physical Harm Defined in the O.R.C.?

O.R.C. §2901.01(A)(5) defines serious physical harm to persons as 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.

Established Case Law

In State v. Thundercloud, 2019- Ohio-2471 this court noted: Under certain circumstances, a bruise can constitute serious physical harm because a bruise may satisfy the statutory requirement for temporary serious disfigurement. See also, State v. Payne, 8th Dist. Cuyahoga 76539 (July 20, 2000) [bloody cut, swollen eye are temporary, serious disfigurement]; State v. Plemmons–Greene, 2010-Ohio- 655, [black eye, bruising, swelling to right side of face, scratches on neck, and bruising on thighs and buttocks].

Victim Sustained Temporary Disfigurement

In this matter, even without considering the injuries J.S. was unable to receive treatment for, the state produced sufficient evidence of temporary serious disfigurement. The photographic evidence produced by the state showed J.S. suffered profuse swelling and bruising to her face that persisted from May 21, 2022, the day of the assaults, until at least June 1, 2022 when J.S. stopped documenting the healing injuries. On June 1, 2022, 12 days after the assaults, J.S. still had two black eyes.

Holding

We find this evidence sufficient to satisfy the statutory requirement of temporary serious disfigurement.

The judgment of conviction and sentence of the Stark County Court of Common Pleas is affirmed.

Information for this article was obtained from State v. Hill, 2023 – Ohio – 2109.

State v. Hill, 2023 – Ohio – 2109 was issued by the Fifth District Appellate Court and is binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.

Lessons Learned:

  1. Bruising – Misdemeanor or Felony? The obvious question is when is bruising following an assault a felony and when does bruising following an assault remain a misdemeanor? The established case law has no clear standard that an officer can apply at a scene.  For example, in State v. Thundercloud, 2019 – Ohio – 2471 the Fifth District Court held: Under certain circumstances, a bruise can constitute serious physical harm because a bruise may satisfy the statutory requirement for temporary serious disfigurement. But what are the ‘certain circumstances’ in the Thundercloud case that distinguishes it from any other assault? A significant part of the challenge is that if an officer charges a suspect with a misdemeanor and the suspect could have been charged with a felony, the suspect may quickly plead guilty to the assault.  At that moment the Double Jeopardy doctrine would attach, inhibiting the suspect to be re-charged with a felony. When in doubt, law enforcement should contact the prosecutor(s) for guidance.
  2. Pre-Sent Arms! The victim, J.S., should be highly commended for her bravery to go directly to Canton Police following this prolonged, horrific domestic assault

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