The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
SYLVESTER N. COWANS,
Petitioner, : Case No. 2:21-cv-4768
- vs - Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz
DAVID GRAY, WARDEN,
Belmont Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATION
This habeas corpus case, brought pro se by Petitioner Sylvester Cowans pursuant to 28
U.S.C. § 2254, seeks relief from his conviction in the Franklin County Court of Common Pleas on
May 1, 2019. The case is ripe for decision on the Petition (ECF No. 3), the State Court Record
(ECF No. 11), and the Return of Writ (ECF No. 12). When the Return was filed, the Court notified
Petitioner that his reply to the Return was due no later than April 23, 2022 (ECF No. 15). As of
May 4, 2022, no reply has been received and docketed by the Clerk.
Litigation History
On November 13, 2017, a Franklin County grand jury indicted Petitioner on one count of
felonious assault in violation of Ohio Revised Code § 2903.11 (Indictment, State Court Record,
ECF No. 11, Ex. 1). He was tried to a jury and convicted on May 1, 2019. Id. at Ex. 4. Cowans
appealed to the Tenth District Court of Appeals, raising sufficiency of the evidence and manifest
weight of the evidence assignments of error. That court affirmed. State v. Cowans, 2020 Ohio
5250 (10th Dist., Nov. 10, 2020). Cowans sought a delayed appeal in the Supreme Court of Ohio which
declined that request. State v. Cowans, 161 Ohio St. 3d 1473 (2021). Having failed to win judicial
release, Cowans files his Petition for Writ of Habeas Corpus in this Court on September 17, 2021, by
depositing it in the prison mailing system on that date.
Cowans pleads the following ground for relief:
Ground One: Due Process denies a conviction that is based on
insufficient evidence for Fel. Assault in violation of the U.S.
Constitution Amendment V, VI, and XIV.
Supporting Facts: At the conclusion of the state’s case, appellant
moved for dismissal under Ohio Crim. R. 29. (Trial T.285, 290),
attesting the sufficient of the state’s evidence (sic). The position was
that there were no witnesses whatsoever who saw what was asserted
to the states witness in case (sic). The states witness was the sole
admission to the evidence, however under oath the state witness
admitting to being highly intoxicated and under the influence of
cocaine and marijuana; when the asserted fel. Assault happed (Trial
T. 131-133). The states witness nephew took a stand who lived at
the resident (sic) testified he never saw an incident with petitioner
and the states witness, accusing of the Fel. Assault. (sic) The
petitioner was seen leaving the resident (sic) prior to anything that
was asserted to happened. (T. 241-245) The trial court should have
moved for the dismissal under Crim.R.29 as the evidence was
insufficient.
(Petition, ECF No. 3, PageID 26).
Analysis
The Petition raises a single ground for relief, to wit, that Cowan’s conviction is not supported
by sufficient evidence. But Respondent urges the Court to stop short of a merits analysis and dismiss
the Petition because it is barred by procedural default.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims
that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020),
citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).
Respondent asserts Cowans has procedurally defaulted his claim by failing to present it to
the Supreme Court of Ohio in a timely appeal. Failure to present an issue to the state supreme
court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999)(citations omitted). The record plainly shows that Cowans’ attempt to appeal to the
Supreme Court of Ohio was untimely and Cowans has offered no excusing cause and resulting
prejudice. The Ohio Supreme Court’s time limit on appeal has been repeatedly held to be an
adequate and independent state court procedural rule on which to ground a procedural default
analysis. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(citations omitted).
Petitioner’s Ground for Relief is procedurally defaulted without excuse. The Petition
should be dismissed with prejudice on that basis.
Merits Analysis
If, in the alternative, the Court decides to reach the merits of the Petition, it should nevertheless
dismiss the Petition with prejudice because it is without merit.
An allegation that a verdict was entered upon insufficient evidence
states a claim under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Jackson v. Virginia,
443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson
v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894
F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a conviction to
be constitutionally sound, every element of the crime must be
proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson). This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson).
This standard “must be applied with explicit reference to the substantive elements of the
criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-
evaluate the credibility of witnesses, or substitute our judgment for
that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th
Cir. 1993). Thus, even though we might have not voted to convict a
defendant had we participated in jury deliberations, we must uphold
the jury verdict if any rational trier of fact could have found the
defendant guilty after resolving all disputes in favor of the
prosecution. Second, even were we to conclude that a rational trier
of fact could not have found a petitioner guilty beyond a reasonable
doubt, on habeas review, we must still defer to the state appellate
court's sufficiency determination as long as it is not unreasonable.
See 28 U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus
case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to
the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,
541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);
Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based
upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656
(6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational trier
of fact could have agreed with the jury." Cavazos v. Smith, 565 U.
S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).
And second, on habeas review, "a federal court may not overturn a
state court decision rejecting a sufficiency of the evidence challenge
simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was
'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.
___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43
(2012) (per curiam). The federal courts do not make credibility determinations in reviewing
sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010);
Thompson v. Skipper, 981 F.3d 476 (6th Cir.,2020). “To evaluate a sufficiency-of-the-evidence
claim, we consider ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.’ Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). This standard “must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Id. (quoting Jackson, 443
U.S. at 324).”
The state court’s application “must be ‘objectively unreasonable,’ not merely wrong; even
‘clear error’ will not suffice.” Nagy, 962 F.3d at 199 (quoting White v. Woodall, 572 U.S. 415,
419 (2014)). In other words, “relief is available under § 2254(d)(1)’s unreasonable-application
clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts
that there could be no ‘fairminded disagreement’ on the question.” Woodall, 572 U.S. at 427
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Together, Jackson and AEDPA’s two layers of deference dictate that “a federal court’s
‘review of a state-court conviction for sufficiency of the evidence is very limited.’” Tackett v.
Trierweiler, 956 F.3d 358, 367 (6th Cir. 2020) (quoting Thomas v. Stephenson, 898 F.3d 693, 698
(6th Cir. 2018)).
Cowans raised insufficiency of the evidence as his First Assignment of Error on direct
appeal. The Tenth District combined its analysis with the second assignment, to wit, that the
conviction was against the manifest weight of the evidence and decided those claims as follows:
A. First and Second Assignments of Error – Motion for
Acquittal/Sufficiency of the Evidence and Manifest Weight of
the Evidence
{¶ 19} Appellant's two assignments of error are interrelated in that
they challenge both the sufficiency and weight of the evidence;
therefore, we address them together. In his first assignment of error,
appellant argues that the trial court erred when it denied his motion
for acquittal. In his second assignment of error, appellant argues that
the verdict of felonious assault was against the manifest weight of
the evidence. We find no merit in either of appellant's contentions.
{¶ 20} Crim.R. 29(A) provides, in relevant part, “[t]he court on
motion of a defendant or on its own motion, after the evidence on
either side is closed, shall order the entry of a judgment of acquittal
of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of
such offense or offenses.” Crim.R. 29(A). “Sufficiency of the
evidence is a legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict.” State v.
Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, 2010 WL
1731238, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997). Whether a conviction is supported by
legally sufficient evidence is a question of law. State v. Flood, 10th
Dist. No. 18AP-206, 2019-Ohio-2524, 2019 WL 2603236, ¶ 16,
citing Thompkins at 386, 678 N.E.2d 541.
{¶ 21} In reviewing a challenge to the sufficiency of the evidence,
an appellate court must determine “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. In
conducting a review of the sufficiency of the evidence, “ ‘an
appellate court does not engage in a determination of witness
credibility; rather it essentially assumes the state's witnesses
testified truthfully and determines if that testimony satisfies each
element of the crime.’ ” Flood, 2019-Ohio-2524, at ¶ 16, quoting
State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, 2009
WL 418770, ¶ 4, citing State v. Woodward, 10th Dist. No. 03AP-
398, 2004-Ohio-4418, 2004 WL 1879037, ¶ 16.
{¶ 22} Comparatively, “[w]hile sufficiency of the evidence is a test
of adequacy regarding whether the evidence is legally sufficient to
support the verdict as a matter of law, the criminal manifest weight
of the evidence standard addresses the evidence's effect of inducing
belief.” Cassell, 2010-Ohio-1881, at ¶ 38, citing State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing
Thompkins, 78 Ohio St.3d 380, at 386, 678 N.E.2d 541. “When a
court of appeals reverses a judgment of a trial court on the basis that
the verdict is against the weight of the evidence, the appellate court
sits as a ‘thirteenth juror’ and disagrees with the factfinder's
resolution of the conflicting testimony.” Thompkins at 387, 678
N.E.2d 541, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211,
72 L.Ed.2d 652 (1982). “ ‘The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” Id., quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). This
discretionary authority “ ‘should be exercised only in the
exceptional case in which the evidence weighs heavily against the
conviction.’ ” Id., quoting Martin at 175, 485 N.E.2d 717.
{¶ 23} Furthermore, “ ‘[w]hile the jury may take note of
inconsistencies and resolve or discount them accordingly, * * * such
inconsistences do not render defendant's conviction against the
manifest weight or sufficiency of the evidence.’ ” State v. Gullick,
10th Dist. No. 13AP-317, 2014-Ohio-1642, 2014 WL 1515442, ¶
10, quoting State v. Nivens, 10th Dist. No. 95APA09-1236, 1996
WL 284714 (May 28, 1996). “A jury, as the finder of fact and the
sole judge of the weight of the evidence and the credibility of the
witnesses, may believe or disbelieve all, part, or none of a witness's
testimony.” Id., citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
{¶ 24} A conviction is not against the manifest weight of the
evidence simply because the jury believed the state's version of
events over the appellant's version. Gullick at ¶ 11, citing State v.
Houston, 10th Dist. No. 04AP-875, 2005-Ohio-4249, 2005 WL
1953057, ¶ 38, rev'd and remanded in part on other grounds.
Rather, a reviewing court must give great deference to the jury's
determination of witness credibility. Id., citing State v. Chandler,
10th Dist. No. 05AP-415, 2006-Ohio-2070, 2006 WL 1102808, ¶
19. This is so because the jury “ ‘ “is best able to view the witnesses
and observe their demeanor, gestures, and voice inflections, and use
these observations in weighing the credibility of the proffered
testimony.” ’ ” State v. Huber, 10th Dist. No. 18AP-668, 2019-Ohio-
1862, 2019 WL 2121316, ¶ 32, quoting State v. Cattledge, 10th Dist.
No. 10AP-105, 2010-Ohio-4953, 2010 WL 3972574, ¶ 6, quoting
Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984).
{¶ 25} Appellant was convicted on one count of felonious assault,
in violation of R.C. 2903.11. R.C. 2903.11 defines felonious assault
and provides, in relevant part:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to
another's unborn;
(2) Cause or attempt to cause physical harm to
another or to another's unborn by means of a deadly
weapon or dangerous ordnance.
R.C. 2903.11(A)(1) and (2). In turn, “serious physical
harm” is defined as:
(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.
R.C. 2901.01(A)(5).
{¶ 26} In his challenge to the sufficiency of the evidence, appellant
argues that the state failed to meet its burden of proving that
appellant caused the injuries suffered by J.J. as required by R.C.
2903.11. Specifically, appellant asserts that the evidence showed
that J.J.'s injuries were caused not by appellant, but by a fall in the
kitchen.
{¶ 27} Appellant also challenges the testimony of J.J. as being
unreliable due to J.J.'s admitted intoxication. But the mere fact that
J.J. had been drinking, used drugs, or was intoxicated does not
automatically negate her testimony. See State v. Word, 10th Dist.
No. 17AP-367, 2019-Ohio-1733, 2019 WL 2006133, ¶ 40.
Furthermore, appellant's challenge to the credibility of J.J.'s
testimony goes to the weight of the evidence, not the sufficiency of
the evidence. (Citations omitted.) State v. Cervantes, 10th Dist.,
2019-Ohio-1373, 133 N.E.3d 1072, ¶ 33. “[I]n a sufficiency of the
evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes
the state's witnesses testified truthfully and determines if that
testimony satisfies each element of the crime.” State v. Bankston,
10th Dist. No. 08AP-668, 2009-Ohio-754, 2009 WL 418770, ¶ 4.
{¶ 28} The evidence presented by the state included J.J.'s testimony
that appellant hit her in her face with a liquor bottle two times and
that she fell to the ground. (Tr. at 144, 146-147.) J.J. also testified
regarding her extensive injuries and ongoing physical and
psychological difficulties. (Tr. at 150-152.) J.J.'s medical records
also demonstrated significant trauma and damage to her face. (Tr. at
157-158; State's Exs. B-1 through B-4.) Additionally, Mr. White
testified that when he discovered J.J. lying on the kitchen floor, there
were large chunks of glass near her and “a whole bunch of glass
spread all over the kitchen floor.” (Tr. at 226.)
{¶ 29} The foregoing evidence is entirely consistent with a jury
finding that J.J.'s injuries were caused by appellant and not by a fall.
Construing the evidence in favor of the state, we conclude it was
sufficient to allow the jury to infer that appellant knowingly caused
physical harm to J.J. and/or that appellant knowingly caused or
attempted to cause serious physical harm to J.J. by means of a deadly
weapon as required by R.C. 2903.11(A)(1) and (2). Therefore, the
trial court properly overruled appellant's motion for acquittal made
pursuant to Crim.R. 29.
{¶ 30} The manifest weight of the evidence also supports appellant's
conviction for felonious assault. Although appellant argues that the
evidence “supports an accidental fall rather than an intentional act”
(Appellant's Brief at 17), as discussed above, the record shows J.J.
was consistent in her testimony that appellant had assaulted her by
hitting her in the face twice with a liquor bottle. J.J. further explained
that when she told the police at the scene that she had fallen, she
meant she had fallen after being struck with the liquor bottle by
appellant. (Tr. at 148.) J.J. also identified appellant as her assailant
on the night of the incident. (Tr. at 149.) Furthermore, the testimony
of Mr. White corroborated key portions of J.J.'s testimony of the
events.
{¶ 31} As set forth above, under a manifest weight of the evidence
analysis, although we are able to consider the credibility of the
witnesses in conducting our review, “ ‘we are guided by the
presumption that the jury * * * is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proferred [sic]
testimony.’ ” Cattledge at ¶ 6, quoting Seasons Coal Co. at 80, 461
N.E.2d 1273. In this case, the jury was entirely free to believe J.J.,
the victim, and appellant's conviction is not against the manifest
weight of the evidence merely because the jury found her testimony
credible. See Gullick, 2014-Ohio-1642, at ¶ 11. Indeed, “the
testimony of one witness, if believed by the jury, is enough to
support a conviction.” State v. Hood, 10th Dist. No. 15AP-656,
2015-Ohio-5373, 2015 WL 9393520, ¶ 11, citing State v. Strong,
10th Dist. No. 09AP-874, 2011-Ohio-1024, 2011 WL 794604, ¶ 42.
In short, in engaging in the limited weighing of the evidence which
we are permitted, we cannot say the jury clearly lost its way when it
found appellant guilty of felonious assault beyond a reasonable
doubt. Accordingly, we find that the manifest weight of the evidence
supports appellant's conviction.
{¶ 32} In sum, appellant has failed to demonstrate that the evidence
was insufficient or that the jury clearly lost its way and created such
a manifest miscarriage of justice that his conviction on the felonious
assault count must be reversed and a new trial ordered. Because
appellant's conviction was supported by sufficient evidence and was
not against the manifest weight of the evidence, his first and second
assignments of error are overruled.
State v. Cowans, supra.
This conclusion by the Tenth District is completely consistent with the governing federal
law set forth in Jackson, supra. If the Court reaches the merits, it should conclude Cowans’
Petition is without merits and should be dismissed with prejudice.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability
and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and
should not be permitted to proceed in forma pauperis.
May 4, 2022.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
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