State v. Woodard

[Cite as State v. Woodard, 2023-Ohio-1989.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-220364

C-220365

Plaintiff-Appellee, : TRIAL NOS. B-2103506B

B-2102994

:

VS.

: O P I N I O N.

JERRELL WOODARD, :

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded in C-220364; Appeal

Dismissed in C-220365

Date of Judgment Entry on Appeal: June 16, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and William R. Gallagher, for Defendant-Appellant.

OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} Defendant-appellant Jerrell Woodard was found guilty of felonious

assault after a jury trial. In two assignments of error, Woodard contends that there is

insufficient evidence to sustain the jury’s verdict and that the court committed

reversible error in refusing to instruct the jury on the lesser-included offense of

assault. For the reasons set forth below, we sustain the second assignment of error,

reverse the trial court’s judgment, and remand the case for a new trial.

I. Factual and Procedural History

{¶2} On July 2, 2021, Woodard entered the lobby of the President Apartment

Building in the Avondale neighborhood of Cincinnati, Ohio. Surveillance video played

during the trial showed Woodard arguing with his girlfriend. The video does not

contain audio. Jonathan Killings, a resident of the building, was standing nearby.

{¶3} The video showed that moments later Woodard and Killings got into an

argument. Woodard approached Killings and chest-bumped him several times. In

response, Killings pulled out a small knife and held it close to his side. Killings testified

at trial that after he pulled out the knife, Woodard said, “Oh, I got something for you.”

In a recorded police interview, Woodard said that he told Killings to “put the knife

down, let’s fight.”

{¶4} The video showed Woodard leave the lobby and return a few minutes

later with his twin brother Jayce Woodard. Woodard and his brother quickly walked

towards Killings and Woodard punched Killings in the face. A few seconds later,

Killings stabbed Jayce. Jayce then pulled a gun from his waistband and shot Killings

two times. Killings survived, but suffered substantial injuries from the gunshot

wounds.

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{¶5} On July 15, 2021, a joint indictment was filed against Woodard and

Jayce. Woodard was charged with two counts of felonious assault for: (count 1)

knowingly causing serious physical harm to Killings in violation of R.C. 2903.11(A)(1)

and (count 2) knowingly causing, or attempting to cause, physical harm to Killings by

means of a deadly weapon in violation of R.C. 2903.11(A)(2). Both charges are second-

degree felonies. Jayce was charged with (count 3) having weapons under disability,

(count 4) possession of cocaine, and (counts 5 and 6) two counts of felonious assault

under R.C. 2903.11(A)(1) and (2). The bill of particulars stated:

COUNTS I, II, III, V and VI

On or about July 2, 2021, at approximately 0035 hours, in the vicinity

of the President Apartment Building located at 784 Greenwood Avenue,

the Defendants, Jayce Woodard and Jerrell Woodard punched the

victim, Jonathan Killings, about Killings’ face. As Jonathan Killings fled

the scene Jayce Woodard fired a firearm toward Jonathan Killings.

Jonathan Killings suffered a gunshot wound to Killings’ back. Jayce

Woodard is precluded from possessing a firearm due to a prior

Aggravated Robbery conviction.

{¶6} Woodard’s case proceeded to a jury trial in April 2022. During opening

statements, the state told the jury that counts one and two were alternative counts

charging Woodard with complicity to the shooting committed by Jayce. Woodard

requested a jury instruction for count one on the lesser-included offense of assault

under R.C. 2903.13 (“misdemeanor assault”). Woodard’s counsel explained, “My

client admits that he struck Mr. Killings one time as a punch. Therefore, we believe it

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OHIO FIRST DISTRICT COURT OF APPEALS

qualifies for assault under R.C. 2903.13 for the jury to consider.” The court denied the

motion, and denied the request again after it was reiterated at the close of the evidence.

{¶7} The jury found Woodard guilty of felonious assault under count one

(knowingly causing serious physical harm) but not guilty of count two (knowingly

causing physical harm by means of a deadly weapon).

{¶8} Woodard timely appealed in the case numbered C-220364. He contends

that the jury’s verdict is not supported by sufficient evidence and that the court erred

in refusing to instruct the jury on the lesser-included offense of misdemeanor assault.

{¶9} Woodard also appealed an unrelated conviction for trafficking in

marijuana in the case numbered C-220365.1 As he has raised no assignment of error

as to that conviction, the appeal numbered C-220365 is dismissed.

II. Sufficiency of the Evidence

{¶10} In his first assignment of error, Woodard contends that the jury’s

verdict was based on insufficient evidence. Woodard argues that his guilt cannot be

based on his complicity to the shooting because his acquittal on count two means that

“the jury did not believe Jerrell should be held accountable for the injuries Killings

sustained from being shot by Jayce.” Thus, Woodard contends that under a complicity

theory, “the only way the jury could convict him of Count One is if the State proved

beyond a reasonable doubt Killings sustained serious physical harm when Jayce

punched him.” Woodard contends that the state did not offer any evidence that

Killings sustained serious physical harm as a result of a punch by Jayce.

1 Woodard was sentenced for the felonious assault and trafficking-in-marijuana convictions in a

joint-sentencing hearing in July 2022, but these convictions are otherwise unrelated.

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{¶11} The state responds that “Count One was not charged on the basis of a

punch to Killings’ face.” Rather, the two counts were charged in the alternative

“because Woodard solicited the help of his brother to shoot Killings with a gun.” The

evidence is sufficient, the state argues, to prove that Woodard was complicit in the

shooting of Killings.

{¶12} When faced with a sufficiency-of-the-evidence challenge, this court asks

“ ‘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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295,

82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. Sufficiency review “raises a question of law, the

resolution of which does not allow the court to weigh the evidence.” State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see State v. Guthrie, 1st Dist.

Hamilton No. C-180661, 2020-Ohio-501, ¶ 7. The court’s role is to ask “whether the

evidence against a defendant, if believed, supports the conviction.” (Emphasis sic.)

State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311, 182 N.E.3d 1161, ¶ 16.

{¶13} Woodard was convicted of felonious assault under R.C. 2903.11(A)(1).

That statute provides that “No person shall knowingly * * * [c]ause serious physical

harm to another or to another’s unborn.” Serious physical harm includes physical

harm that: “carries a substantial risk of death,” “involves some permanent incapacity,”

or “involves acute pain [resulting in] substantial suffering.” R.C. 2901.01(A)(5)(b), (c),

(e). Serious physical harm can also be “mental illness * * * normally requir[ing] * * *

prolonged psychiatric treatment.” R.C. 2901.01(A)(5)(a). Firing a gun at a victim is

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OHIO FIRST DISTRICT COURT OF APPEALS

sufficient evidence of felonious assault. State v. Henderson, 1st Dist. Hamilton No. C-

130541, 2014-Ohio-3829, ¶ 28.

{¶14} Woodard was charged in count one of the indictment with the principal

offense of felonious assault, but the state pursued a complicity theory at trial and the

jury was instructed accordingly. This approach is proper pursuant to R.C. 2923.03(F).

See R.C. 2923.03(F) (“Whoever violates this section is guilty of complicity in the

commission of an offense, and shall be prosecuted and punished as if he were a

principal offender. A charge of complicity may be stated in terms of this section, or in

terms of the principal offense.”); State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,

840 N.E.2d 151, ¶ 181 (explaining that R.C. 2923.03(F) “adequately notifies

defendants that the jury may be instructed on complicity, even when the charge is

drawn in terms of the principal offense.”); State v. Caldwell, 19 Ohio App.3d 104, 109,

483 N.E.2d 187 (8th Dist.1984) (holding that a charge of complicity may be stated in

terms of R.C. 2923.03 or in terms of the principal offense); State v. Dotson, 35 Ohio

App.3d 135, 138, 520 N.E.2d 240 (3d Dist.1987) (same).

{¶15} “To support a conviction for complicity by aiding and abetting pursuant

to R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,

encouraged, cooperated with, advised, or incited the principal in the commission of

the crime, and that the defendant shared the criminal intent of the principal. Such

intent may be inferred from the circumstances surrounding the crime.” State v.

Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001), syllabus.

{¶16} Putting all of this together, the issue is whether after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could

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OHIO FIRST DISTRICT COURT OF APPEALS

have found that Woodard knowingly aided or abetted Jayce in causing serious physical

harm to Killings.

{¶17} It is important to note that the jury’s acquittal on count two does not, as

Woodard argues, signify that his conviction on count one must have been based on

actions other than the shooting. A review for sufficiency of the evidence “should not

be confused with the problems caused by inconsistent verdicts[,]” and “should be

independent of the jury’s determination that evidence on another count was

insufficient.” United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461

(1984). While Woodard contends that this is not a situation involving inconsistent

verdicts, his argument relies on the same proposition underlying inconsistent-verdict

jurisprudence: that his conviction on count one could not have been based on the

shooting because “the findings necessary to support that conviction are inconsistent

with the findings necessary to acquit the defendant” of count two. Henderson, 1st Dist.

Hamilton No. C-130541, 2014-Ohio-3829, at ¶ 24, citing State v. Hicks, 43 Ohio St.3d

72, 78, 538 N.E.2d 1030 (1989). However, it is well-established that verdicts on

separate counts of a multi-count indictment do not need to be consistent. Id. at ¶ 24-25

(collecting cases). Thus, we will address the sufficiency of the evidence as it relates to

Woodard’s conviction for complicity to felonious assault based on the totality of the

state’s evidence.

{¶18} Killings testified, and surveillance video from the scene confirms that

Woodard confronted Killings in the lobby and aggressively chest-bumped him several

times. According to Killings, Woodard said, “Oh, I got something for you,” just before

he left the lobby and returned with Jayce at his side. Once inside, they walked directly

to Killings and confronted him together. Woodard punched Killings, and Jayce pulled

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OHIO FIRST DISTRICT COURT OF APPEALS

a gun out of his waistband and fired two shots at him from close range. The

surveillance video captures this entire scene. Killings testified that his injuries from

the shooting, which included scarring, rib pain, anxiety, and PTSD symptoms, were

extensive, and required ongoing treatment. After viewing the evidence in a light most

favorable to the state, any rational trier of fact could have found that Woodard was

complicit in Jayce’s shooting of Killings, and that the shooting caused Killings serious

physical harm.

{¶19} The first assignment of error is overruled.

III. The Jury Instruction

{¶20} In his second assignment of error, Woodard contends that the court

erred in refusing to instruct the jury on the lesser-included offense of misdemeanor

assault under R.C. 2903.13(A). In response, the state argues that the lesser-included-

offense instruction was not required because “no reasonable interpretation of the facts

would have resulted in an acquittal of the felonious assault charge in Count One.”

{¶21} Central to this analysis is determining the conduct at issue with respect

to count one: the punch or the shooting. While the state’s theory throughout most of

the trial was that count one and count two were charged in the alternative, both under

a theory that Woodard was complicit in the shooting, the bill of particulars and the

state’s comments during rebuttal argument contradict this position.

{¶22} “A bill of particulars has a limited purpose—to elucidate or particularize

the conduct of the accused alleged to constitute the charged offense.” State v. Sellards,

17 Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). The bill of particulars in this case did

not particularize Woodard’s conduct alleged to constitute each charged offense in

counts one and two. Rather, it grouped counts one, two, three, five, and six of the

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indictment together, describing the entire course of conduct of both brothers in a

single four-sentence paragraph that accused both brothers of punching Killings and

Jayce of shooting Killings.

{¶23} During its opening statement, the state explained that counts one and

two were alternative counts charging Woodard with complicity to the shooting

committed by his brother. But because testimonial and video evidence played at trial

clearly established that Woodard punched Killings, defense counsel requested that the

judge charge the jury on the lesser-included offense of misdemeanor assault for count

one. Counsel argued that it was clear from the evidence that Woodard punched

Killings, but there was no evidence that Woodard’s actions caused serious physical

harm. The state agreed that misdemeanor assault is a lesser-included offense of

felonious assault. The court then interjected that it understood count one to be not

based on the “the hitting,” but rather complicity to the shooting. The court stated,

“[I]t’s not a lesser included offense of the felonious assault that’s actually charged.”

The state agreed with the court’s analysis.

{¶24} However, only count two of the indictment specified that the felonious

assault was committed by using a handgun. The bill of particulars was not clear

whether the punch or the shooting was the act alleged in count one. Thus, it is

understandable that the defense believed that count one could be based on the punch.

{¶25} Until its rebuttal argument in closing, the state pursued the shooting as

the act that was the basis for count one. However in rebuttal, the prosecutor said:

And you are going to be considering these charges individually, and we

talked about those two separate charges. There’s knowingly cause

serious physical harm, and then there’s also knowingly attempting to

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OHIO FIRST DISTRICT COURT OF APPEALS

cause physical harm with a deadly weapon. So even if you don’t believe

that Jerrell’s intent was for Jayce to shoot him, his intent was to beat

him up and cause harm. * * * Jerrell started this entire series of events

in motion, he got the brother. Brought his brother in. He knew their

intent was to go cause serious physical harm. They are going to punch

this guy, for getting in his business.

Thus, the state’s theory seemed to change during rebuttal, and it indicated to the jury

that they could find Woodard guilty of count one for his punch to Killings’s face. On

appeal, Woodard argues that the court therefore should have instructed the jury on

misdemeanor assault.

{¶26} Courts use a two-step analysis to determine whether such an instruction

is warranted. The first step, known as the statutory-elements step, “is a purely legal

question, wherein we determine whether one offense is generally a lesser included

offense of the charged offense.” State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722,

989 N.E.2d 986, ¶ 6. To make this determination, the court considers whether: (1) one

offense carries a greater penalty than the other; (2) some element of the greater offense

is not required by statute to prove the lesser offense; and (3) the greater offense as

defined by statute cannot be committed without the lesser offense being

committed. State v. Lanter, 1st Dist. Hamilton No. C-170385, 2018-Ohio-3127, ¶ 17.

Whether an offense is a lesser-included offense of the charged offense is an issue of

law we review de novo. State v. Kulchar, 4th Dist. Athens No. 10CA6, 2011-Ohio-5144,

¶ 23.

{¶27} Courts, including this one, have consistently held that misdemeanor

assault under R.C. 2903.13(A) is a lesser-included offense of felonious assault. See

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OHIO FIRST DISTRICT COURT OF APPEALS

State v. Brundage, 1st Dist. Hamilton No. C-030632, 2004-Ohio-6436, ¶ 15 (“assault

pursuant to R.C. 2903.13(A) and (B) is a lesser-included offense of felonious assault

pursuant to R.C. 2903.11(A)(1)”); State v. Sheppard, 1st Dist. Hamilton N0. C-000553,

2001 Ohio App. LEXIS 4590, 12 (Oct. 12, 2001) (“Unlike aggravated assault, assault is

a lesser-included offense of felonious assault.”); State v. Clark, 4th Dist. Lawrence No.

03CA18, 2004-Ohio-3843, ¶ 8 (“Assault is a lesser-included offense of felonious

assault.”); State v. Tolle, 12th Dist. Clermont No. CA2014-06-042, 2015-Ohio-1414, ¶

10 (holding misdemeanor assault is a lesser-included offense of felonious assault

under R.C. 2903.11(A)(1)); State v. Cochran, 2d Dist. Montgomery No. 19448, 2003-

Ohio-3980, ¶ 10 (holding misdemeanor assault is a lesser-included offense of

felonious assault under R.C. 2903.11(A)(2)).

{¶28} Once the court determines that the offense is a lesser-included offense

of the charged offense, the court is required to give the instruction only where “ ‘a jury

could reasonably find the defendant not guilty of the charged offense, but could convict

the defendant of the lesser included offense.’ ” State v. Evans, 122 Ohio St.3d 381,

2009-Ohio-2974, 911 N.E.2d 889, ¶ 13, quoting Shaker Hts. v. Mosely, 113 Ohio St.3d

329, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11; Lanter at ¶ 17. “In making this

determination, the trial court must view the evidence in the light most favorable to the

defendant.” State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285,

¶ 37. This step of the analysis requires the court to assess the facts of the case and will

not be reversed absent an abuse of discretion. See State v. Miree, 2022-Ohio-3664,

199 N.E.3d 72, ¶ 48 (8th Dist.) (“Trial courts have broad discretion to determine

whether the record contains sufficient evidentiary support to warrant a jury

instruction on a lesser included offense, and that will not be reversed absent an abuse

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of discretion.”); see also State v. Patterson, 1st Dist. Hamilton No. C-170329, 2018-

Ohio-3348, ¶ 37, citing State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 240.

{¶29} The surveillance video played for the jury shows Woodard and Jayce

approaching Killings together upon entering the building. It is not until Jayce is

stabbed by Killings that he pulls out a gun and shoots Killings. While Killings testified

that Woodard said, “Oh, I got something for you,” before leaving the lobby and

returning with his brother, Woodard denied that he sought his brother’s aid to shoot

Killings. Rather, Woodard told police that his brother was in the building to visit their

mother.

{¶30} As stated above, the evidence was sufficient to prove that Woodard was

complicit in the shooting. But the question we must answer is whether a jury could

reasonably acquit Woodard of felonious assault, but convict him of misdemeanor

assault. In this case we know that Woodard was acquitted of count two (involving the

use of a deadly weapon), which could only be based on the shooting. See R.C.

2903.11(A)(2).

{¶31} The evidence was clear that Woodard punched Killings in the face. The

jury watched a video clearly documenting the punch. Yet it did not hear any evidence

about an injury to Killings’s face. Instead, the evidence focused on the injuries as they

related to the shooting. A punch to the face is sufficient for an assault conviction under

R.C. 2903.13(A). See State v. James, 1st Dist. Hamilton No. C-210597, 2022-Ohio-

3019, ¶ 9; State v. Beach, 11th Dist. Trumbull No. 2011-T-0043, 2012-Ohio-298, ¶ 32

(“It is well-established, however, that hitting or punching someone in the face

constitutes an attempt to cause physical harm, regardless of the result of the blow.”);

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R.C. 2901.01(A)(3) (defining physical harm—as opposed to serious physical harm—as

“any injury * * * regardless of its gravity or duration”).

{¶32} Thus, considering the evidence for count one in the light most favorable

to Woodard, the jury could have reasonably acquitted him of felonious assault under

a complicity theory for Jayce’s shooting, but could have convicted him of misdemeanor

assault for his punch to Killings’s face. The trial court abused its discretion in not

giving the requested instruction.

{¶33} The second assignment of error is sustained.

IV. Conclusion

{¶34} Appellant’s first assignment of error is overruled, but his second

assignment of error is sustained. Accordingly, the judgment of the trial court is

reversed and the case is remanded for a new trial in the appeal numbered C-220364.

The appeal in the case numbered C-220365 is dismissed.

Judgment accordingly.

ZAYAS and KINSLEY, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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