State v. Perdue

[Cite as State v. Perdue, 2026-Ohio-2990.] IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY STATE OF OHIO, CASE NO. 14-25-15 PLAINTIFF-APPELLEE, v. JOSHUA GLEN PERDUE, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT. Appeal from Union County Common Pleas Court Trial Court No. 2024-CR-0121 Judgment Affirmed Date of Decision: August 3, 2026 APPEARANCES: L. Scott Petroff for Appellant Raymond Kelly Hamilton for Appellee Case No. 14-25-15 MILLER, J. {¶1} Defendant-appellant, Joshua G. Perdue (“Perdue”), appeals the March 28, 2025 judgment of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm. Background {¶2} This case arises from a June 7, 2024 incident in which Perdue brandished and pointed a gun at his estranged wife, Bethany Perdue (“Bethany”), during a birthday party for Perdue’s 11-year-old daughter. Bethany feared for her life and a struggle ensued, witnessed by the couple’s children and the children attending the birthday party. Bethany escaped and fled to a neighbor’s home. Soon thereafter, deputies arrested Perdue for driving under the influence of alcohol. {¶3} On June 14, 2024, the Union County Grand Jury indicted Perdue on seven counts: Count One of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony; Count Two of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony; Count Three of kidnapping in violation of R.C. 2905.01(A)(3), a first-degree felony; Count Four of domestic violence in violation of R.C. 2919.25(A), a first degree misdemeanor; Count Five of aggravated menacing in violation of R.C. 2903.21(A), a first-degree misdemeanor; Count Six of improperly handling firearms in a motor vehicle in violation of R.C. 2923.16(D)(1), a fifth-degree felony; Count Seven of operating a motor vehicle -2- Case No. 14-25-15 under the influence of alcohol, a drug of abuse or a combination of them (“OVI”) in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor. Counts One and Three included a three-year firearm specification pursuant to R.C. 2941.145(A). {¶4} Perdue appeared for arraignment on June 20, 2024 and entered not- guilty pleas. A superseding indictment was issued on December 13, 2024, which was identical to the original indictment with the addition of a firearm specification pursuant to R.C. 2941.145(A) in relation to Count Two. On December 19, 2024, Perdue entered a not guilty plea to the charges in the superseding indictment. {¶5} A jury trial was held on February 3, 4, 5, and 6, 2025. At the conclusion of the trial, the jury found Perdue not guilty of Count One (felonious assault) and Count Three (kidnapping). However, the jury found Perdue guilty of Count Two (felonious assault) and the attendant firearm specification, Count Four (domestic violence), Count Five (aggravated menacing), Count Six (improperly handling firearms in a motor vehicle), and Count Seven (OVI). The trial court accepted the jury’s verdict and continued the matter for sentencing. {¶6} On March 28, 2025, the parties appeared for sentencing. The trial court found that Counts Two, Four, and Five merged for sentencing, and the State elected for the court to sentence Perdue on Count Two. The trial court sentenced Perdue to 3 years in prison on the firearm specification associated with Count Two, an indefinite term of 4 to 6 years in prison on Count Two, 12 months in prison on Count Six, and 3 days of local incarceration on Count Seven. The court ordered the -3- Case No. 14-25-15 sentence for the firearm specification to be served prior to and consecutive to the 4 to 6 year sentence imposed for Count Two. The remaining sentences were ordered to run concurrently to this term for an aggregate of 7 years to 9 years in prison. {¶7} On April 8, 2025, Perdue filed a notice of appeal. He raises seven assignments of error which we address out of order, in a manner that facilitates our analysis. Seventh Assignment of Error The conviction was against the manifest weight of the evidence and based upon insufficient evidence in violation of Appellant’s right to due process as guaranteed by the United States Constitution and Ohio Constitution. {¶8} In his seventh assignment of error, Perdue challenges his conviction for felonious assault in violation of R.C. 2903.11(A)(2). Perdue contends that his conviction was based on insufficient evidence and is against the manifest weight of the evidence. Standards of Review {¶9} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). Accordingly, we address the sufficiency of the evidence and manifest weight legal concepts individually. {¶10} “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at -4- Case No. 14-25-15 trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Consequently, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.). {¶11} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[] the evidence and all reasonable inferences, consider[] the credibility of witnesses and determine[] 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 reserved and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the -5- Case No. 14-25-15 conviction,’ should an appellate court overturn the trial court’s judgment.” State v. Haller, 2012-Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524, ¶ 119. Perdue’s Offense {¶12} Perdue was convicted of felonious assault in violation of R.C. 2903.11(A)(2). A person commits felonious assault when he or she knowingly causes or attempts to cause physical harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). “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). “A defendant need not foresee the exact consequences of his actions”; “‘[t]o be actionable, it is only necessary that the result is within the natural and logical scope of risk created by the conduct.’” State v. Hathorn, 2023-Ohio-3936, ¶ 28 (3d Dist.), quoting State v. Taylor, 2019- Ohio-3437, ¶ 46 (12th Dist.); see also State v. Conway, 2006-Ohio-791, ¶ 143 (it is a fundamental principle that a person is presumed to intend the natural, reasonable, and probable consequences of his voluntary acts). {¶13} A firearm is an inherently dangerous instrument, the use of which is likely to produce death. State v. Seiber, 56 Ohio St.3d 4, 14 (1990). The trier of fact may infer the existence of the attempt to cause physical harm element from all of the circumstances that accompany the act of aiming of the deadly weapon at another. State v. Peters, 2023-Ohio-4362, ¶ 14 (3d Dist.); State v. Potts, 2016-Ohio- -6- Case No. 14-25-15 5555, ¶ 53 (3d Dist.). Physical harm to persons is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). Trial Testimony {¶14} Bethany testified that on June 7, 2024, she was hosting a birthday party for Perdue’s daughter, Olivia. At the time, she and Perdue were separated and in the process of ending their marriage and had signed paperwork to that effect the night before. Perdue had been at the house earlier on the day of the party to mow the lawn, but left at some point, and missed the cake and his daughter opening her presents. {¶15} Perdue returned to the house and, at that time, Bethany stated that “the whole room felt like it got dark” with the dog hiding and the kids scattering. (Feb. 4, 2025 Tr. at 174). Bethany recalled Perdue “staring at [her] . . . really oddly” and kept asking to talk to her. (Id.). Bethany refused, saying that it was a birthday party, and tried to keep herself busy but he “kept following [her] around.” (Id.). Bethany testified that she could tell that Perdue had been drinking. {¶16} Bethany stated that because Perdue was making her uncomfortable, she told him that she would meet him outside to hear what he had to say, and that she surreptitiously began video recording with her cell phone. {¶17} Bethany testified that she went upstairs to retrieve an item from her bedroom and Perdue followed behind her and closed the door. Then, he drew a gun -7- Case No. 14-25-15 from his pocket and pointed it at her, causing her to fall to her knees and scream. Bethany stated that she attempted to crawl into her closet and close the door behind her, but Perdue followed her. She repeatedly screamed and implored Perdue to spare her life. {¶18} Bethany stated that she took self-defense classes in the past and recalled her instructor telling the class that if they are in a violent situation they should not do what the aggressor says. Accordingly, Bethany attempted to keep moving so that Perdue could not aim the gun at her forehead. Bethany stated that she was trying “to throw him off because I know he appreciates a clean, quick kill from hunting and animals and working in Hospice and I knew, if I made it so that [the shot] wasn’t going to be perfect, that he wouldn’t pull the trigger I was hoping.” (Feb. 4, 2025 Tr. at 188). {¶19} Bethany recalled that during the attack, Perdue restrained her and pressed the barrel of the gun against her forehead. She also tried to get her hand on the gun “[t]o distract him and throw him off his game” and to try to take the gun from him. (Id. at 189). She recalled that her finger was on Perdue’s finger, which was on the trigger of the gun. {¶20} State’s Exhibit 4, Bethany’s recording of the incident, was played for the jury. In the recording, Bethany could be heard telling Perdue that she would speak to him in a moment. Then, she appears to enter a different room, her bedroom, and the sound of a door closing can be heard. Moments later, Bethany begins -8- Case No. 14-25-15 screaming and begging for her life. During the ensuing struggle, the phone falls onto the floor, but a glimpse of Purdue pointing the gun can still be seen. State’s Exhibit 1, a still photograph of Perdue pointing his gun with his finger on the trigger was shown to Bethany. She testified that, in that photograph, Perdue was pointing the gun at her forehead while she was on the ground. Bethany recalled Perdue pointing the gun at her for the entirety of the struggle, which according to the video timestamps, lasted several minutes. {¶21} Throughout the struggle, Bethany could be heard repeatedly asking Perdue to stop, reminding Perdue that she is a human being and mother, and screaming for help. Bethany stated the reason that she was begging for her life was because she thought that Perdue was going to kill her the same way that he killed feral goats and their dog, Sampson, “with a bullet right in the middle of my head.” (Feb. 4, 2025 Tr. at 185). She testified that she cried out in prayer to the Holy Trinity because she thought Perdue was going to kill her. {¶22} At some point, the partygoers, including Bethany’s children and Perdue’s daughter, opened the door and witnessed the events inside the bedroom. Bethany called out for the children to call the police and to run to the neighbor’s home for safety. Bethany stated that she eventually was able to get out of the room and that, when she did, she ran faster than she ever had before. She recalled that upon leaving the house, she “army crawled” into a nearby field, terrified that Perdue -9- Case No. 14-25-15 would shoot her from the bedroom window. A short time later, she was able to seek shelter at her neighbor’s house with her children, Cole and Ella. {¶23} State’s Exhibit 3, Deputy Phelan’s body-worn camera footage, was played for the jury. The footage depicts Bethany and her children at the neighbor’s house. At the time deputies arrived, Bethany and Cole had their heads bowed together in prayer. Without prompting, Cole stated, “I know what happened. So he had . . . this tiny gun that he had in his hand. It was pointed at my mom’s face.” The video depicts Bethany realizing that her phone was still in the house in the bedroom and that she was recording when the incident occurred. Bethany confirmed at trial that she was in shock and had forgotten that her phone was recording. When she learned that her phone had recorded the incident, Bethany began jumping up and down in “relief” because she knew Purdue to be a liar and she was relieved that she had evidence of what happened. {¶24} Perdue testified in his own defense. He testified that in June 2024, he and Bethany were in the process of ending their marriage. Perdue stated that during the last year of their marriage, he and Bethany drank regularly with each of them consuming 8 to 12 alcoholic drinks daily. Perdue stated that in December of 2023, the relationship had become so “toxic” that he moved into the basement to “[c]reate distance” and “avoid the confrontation.” (Feb. 5, 2025 Tr. at 169). {¶25} According to Perdue, he enjoyed hunting and owned a number of firearms, including the 0.380 Smith and Wesson and 0.40 caliber Smith and Wesson -10- Case No. 14-25-15 at issue in the instant case. Perdue recounted an incident where he euthanized a sick goat and dog by shooting them in the head. He also recalled a story of Bethany being kicked in the head by a goat, resulting in her being treated for a concussion. {¶26} Perdue confirmed that on June 6, 2024, that the day prior to the incident, he and Bethany met at the bank to sign and have their Separation Agreement notarized. Prior to going into the bank, the pair sat inside Bethany’s car and drank wine together and had a “good” and “emotional” conversation. (Feb. 5, 2025 Tr. at 187). Perdue stated that they planned to get together later that evening to have sex. That evening, when they were at Bethany’s house, he recalled that Bethany began talking about a date she was having the following morning, which made Perdue feel “not great.” (Id. at 192). Perdue testified that her comments about the upcoming date caused him to leave the house angrily. {¶27} On June 7, 2024, Perdue arrived at the house around noon to mow the grass before the party and finished around 3:00 p.m. After mowing the lawn, Perdue and Bethany spoke about her breakfast date that morning, which Bethany reported went well. Perdue testified that the conversation caused him to feel frustrated and hurt and that he left the house because of the “tension.” (Id. at 202). Perdue recalled that during the time that he was at the house in the afternoon, he consumed approximately ten beers. {¶28} According to Perdue, he returned to the house around 5:30 p.m. and was disappointed to learn that his daughter had already opened her birthday presents -11- Case No. 14-25-15 and eaten cake. Perdue stated that he and Bethany had a conversation in the garage and she expressed that she was upset with him for missing the cake and presents and told him that he was a “terrible dad” who does not “deserve [his] kids” and that “this place would be better off without [him].” (Id. at 205). {¶29} At that time, Perdue went to his truck to retrieve his gun. Perdue claimed that his “plan wasn’t to harm anybody.” (Feb. 5, 2025 Tr. at 207). Perdue testified that his intention was to “take the gun to give it to Beth . . . and tell her that . . . if you really feel this poorly of me or if you feel this way about me, then . . . you do it.” (Id.). Perdue admitted that he did not actually think that Bethany would try to shoot him, but that he wanted to “get a reaction [from] her” and wanted to “hear her say that she did not mean” the comments that she made in the garage. (Id. at 210). {¶30} Perdue claimed that when he retrieved the gun from the center console of his vehicle, he cleared the chamber to ensure there was not a live round there and put the magazine back in. He testified he did this so the gun would not be operable and so that she could not fire the gun. {¶31} According to Perdue, when he reentered the house, he told Bethany he wanted to talk to her, and she asked him to wait for a minute. Perdue stated that some time passed and he was trying to be patient, but he started to think that Bethany did not want to talk to him. So when she went upstairs to her bedroom, he followed her inside and shut the door behind them. -12- Case No. 14-25-15 {¶32} Perdue testified that he planned to remove his gun from his pocket, hand it to her, and tell her that if she wanted him gone, she was going to have to do it. However, Perdue stated that when he pulled the gun out of his pocket, Bethany immediately dropped to the floor. Perdue stated that her reaction caused him to freeze, but then when Bethany attempted to back her way into her closet, he followed her. Perdue claimed he did not anticipate the screaming and the reaction. He admitted that he could have turned around and walked out of the room, but he “froze” and “panicked.” (Feb. 5, 2025 Tr. at 215-216). Perdue stated he did not recall pointing the gun at Bethany, but he admitted the still photograph from the recording “looks like that.” (Id. at 216). {¶33} Perdue claimed that while Bethany was in the closet, he dropped the gun to his side. According to Perdue, Bethany stood up and walked out of the closet and, at that point, Bethany grabbed hold of Perdue and the gun and was yanking and holding onto the gun. Perdue recalled that she had “a death grip on it with both hands. One hand she’s hanging onto it. One hand she’s moving all over the place. I think she was trying to pull - - pry my hands off of it.” (Feb. 5, 2025 Tr. at 218). {¶34} When asked why he did not just let go of the gun and walk about of the door, Perdue stated, “I wasn’t going to let go of the gun.” (Id. at 221). He claims that after they “struggled” for a minute, Bethany let go of the gun and left. (Id.). {¶35} Perdue denied striking Bethany with his hands or with the gun. Perdue specifically denied pressing the barrel of the gun against her forehead. He admitted -13- Case No. 14-25-15 there were times during the struggle that the gun was close to Bethany, but he denied he was aiming it at her. {¶36} Perdue recalled that after Bethany left the room, he left the house and drove away in his truck. Perdue testified that, a short time later, he was pulled over by a law enforcement officer. Perdue admitted he was not truthful with the officer, telling him that Bethany had a weapon and he wrestled it away from her because he was “intoxicated” and “afraid.” (Feb. 5, 2025 Tr. at 228). {¶37} When confronted with the still photograph of himself holding the gun, he admitted his finger is on the trigger and that the gun was pointed downward at a person. He further admitted he would not want a firearm pointed at him in that way and stated it could cause somebody to be afraid. {¶38} On cross examination, Perdue stated that Bethany dropped to the floor before he pointed the gun but admitted that he “exacerbated or intensified the situation by then bringing the gun up . . . and [having his] right hand extended as she’s grounded in the closet.” (Feb. 5, 2025 Tr. at 267-268). When asked about Olivia’s statement to the deputy that he was pointing the gun at her stepmom, Perdue stated “she thinks that she saw that, yeah, but that’s not what she saw.” (Id. at 270). Similarly, when confronted with Cole’s testimony that he saw Perdue point a gun at his mom’s head, Perdue said, “I’m sure he thinks he saw that but that’s not what I was doing.” (Id. at 271). -14- Case No. 14-25-15 Sufficiency of the Evidence {¶39} Perdue challenges the sufficiency of the evidence supporting his felonious assault conviction. He loosely argues that the State failed to produce sufficient evidence to show that he attempted to cause harm by means of a deadly weapon. {¶40} In support of his argument, Perdue alleges that the act of pointing a gun at a victim, without additional evidence, is insufficient for a conviction for felonious assault. See State v. Brooks, 44 Ohio St.3d 185 (1989) (“[t]he act of pointing a deadly weapon at another, without additional evidence regarding the actor’s intention, is insufficient evidence to convict a defendant of the offense of ‘felonious assault’ as defined by R.C. 2903.11(A)(2)”). Perdue also implies that because he did not shoot Bethany, physically strike her with the gun, or make any threats, that his conduct amounts only to aggravated menacing. We disagree. {¶41} The defendant’s intention to cause physical harm may be inferred, not just from his words, but also from his conduct and the other circumstances surrounding his pointing a deadly weapon at another. “‘While merely pointing a gun at another will not support a felonious-assault conviction, “the Brooks holding is that the trier of fact may infer the existence of [the attempt to cause physical harm] element from the circumstances that surround, and indeed prompt, the aiming of the deadly weapon.”’” Potts, 2016-Ohio-5555, at ¶ 53, quoting State v. Dyer, 2015- -15- Case No. 14-25-15 Ohio-451, ¶ 1 (2d Dist.), quoting State v. Mills, 1990 Ohio App. LEXIS 5437, *5 (1st Dist. Dec. 12, 1990). {¶42} Purdue’s conduct well exceeded that necessary to commit aggravated menacing. Bethany’s testimony, supported by the video evidence, establishes that Perdue arrived at his daughter’s birthday party intoxicated and demanded to speak to Bethany. Bethany stated that Perdue asked to speak to her and she told him that she would speak to him outside, however, Perdue started following her around the house. Sensing danger, Bethany surreptitiously began recording on her cell phone. Bethany testified that when she went upstairs to her bedroom to retrieve an item, Perdue followed her, uninvited, closed the door behind him, drew a firearm and pointed it at her. Bethany immediately screamed and pleaded for her life. Bethany fell to her knees as Perdue continued to point the gun at her. {¶43} Bethany testified that when she saw the gun she “jumped down and [crawled into] the closet to try to shut the door” but Perdue “got in [the closet] and landed on top of me.” (Feb. 4, 2025 Tr. at 188). Perdue grabbed hold of Bethany and pressed the gun into her forehead, causing Bethany to plea for her life reminding Purdue that she was a human being and a mother. Yet, Perdue continued to point the gun at her forehead. {¶44} Bethany testified that in a bid to save her life, she attempted to “distract [Perdue] and throw him off his game” and “[t]o move [the gun]” and “survive.” (Id. at 189). A struggle ensued during which Bethany attempted to wrestle the gun away -16- Case No. 14-25-15 from Perdue. Bethany testified that she placed her thumb in the trigger guard to prevent the firearm from discharging and to try to take the gun away from Perdue. The video recording of the encounter indicates that Perdue informed Bethany that the trigger was in danger of moving and discharging the firearm by repeatedly saying “trigger.” When asked how long Perdue placed the gun on Bethany’s forehead, she testified that it “felt like way longer but a few minutes.” (Id.). {¶45} Bethany pleaded for her life, praying to the “Father, Son, [and] Holy Spirit.” (Id. at 186). Bethany testified that she uttered those words during the encounter because “[Perdue’s] eyes were black and I thought I was going to die and he [Father, Son, Holy Spirit] saw I was [about] to die and I wanted to go to heaven.” (Id.). {¶46} Partygoers, including Bethany’s children and Perdue’s children, heard the commotion and observed the situation. Bethany, fearing that Perdue was going to shoot her, instructed the children to run to the neighbor’s house for safety and to call 911. Perdue’s daughter, Olivia, called 911 telling the operator that her father was pointing a gun at her stepmother. In the background, Perdue’s daughter could be heard attempting to comfort a frantic partygoer, telling the girl “you are not going to die.” (State’s Ex. 1). Bethany’s daughter, Ella, also called 911, explaining that her stepfather was pointing a gun at her mother. {¶47} Bethany testified that at some point during the encounter, she got free and she ran away faster than she had ever run in her life. She testified that she ran -17- Case No. 14-25-15 into the field and crawled away from the house, afraid that Perdue would shoot her through the window. {¶48} Bethany testified to the ongoing fear and terror she felt as a result of the incident. She testified she had difficulty sleeping, having “night terrors,” and was treated for acute PTSD as a result of the incident. She also complained of generalized body pain, including to her head, from the incident. {¶49} When viewed in a light most favorable to the State, we find that, under the facts presented in this case, sufficient evidence exists to support Perdue’s conviction for felonious assault. {¶50} Here, Perdue’s conduct consisted of acts beyond merely displaying the gun. Potts, 2016-Ohio-5555, at ¶ 58. When viewed in a light most favorable to the State, the evidence established that Purdue went beyond merely pointing the gun at Bethany. Perdue chased her with the gun when she attempted to retreat, including pinning down her body and pointing the gun to her forehead. Bethany, fearing for her life, attempted to thwart Perdue’s attempt to get a clean shot at her forehead by attempting to wrestle the gun away from him. Bethany testified that the struggle continued for several minutes, until she was able to break free and run away. See State v. Ross, 2004-Ohio-3093, ¶ 24 (2d Dist.) (upholding a conviction for felonious assault and holding that “the factual circumstances of this case, including the physical scuffle between the police and Ross over closing the door, the repeated act of pointing the laser aimed gun at [the victim’s] chest while making eye contact with -18- Case No. 14-25-15 the officer, and Ross’s staunch refusal to drop the gun or even cease pointing it at the officer despite being cornered and the police’s repeated orders to do so, amount to sufficient evidence in this case that Ross was attempting to cause physical harm to Officer Copley”). Accordingly, we reject Perdue’s argument that his felonious- assault conviction is not supported by sufficient evidence. Manifest Weight {¶51} Having determined that sufficient evidence supported Perdue’s conviction for felonious assault, we next turn to his contention that his conviction is not supported by the weight of the evidence. However, Perdue’s brief does not make arguments directly relating to the weight of the evidence, arguing instead that the State’s evidence was legally insufficient. {¶52} However, to the extent that Perdue is arguing that the jury lost its way by believing Bethany’s version of events over his own, we reject his argument. “A verdict is not against the manifest weight of the evidence because the finder of fact chose to believe the State’s [evidence] rather than the defendant’s version of the events.” State v. Martinez, 2013-Ohio-3189, ¶ 16 (9th Dist.). “‘Although we review credibility when considering the manifest weight of the evidence, the credibility of witnesses is primarily a determination for the trier of fact.’” State v. Cox, 2022- Ohio-571, ¶ 20 (3d Dist.), quoting State v. Banks, 2011-Ohio-5671, ¶ 13 (8th Dist.), citing DeHass, 10 Ohio St.2d at paragraph one of the syllabus. “‘The trier of fact is best able “to view the witnesses and observe their demeanor, gestures[,] and voice -19- Case No. 14-25-15 inflections, and use these observations in weighing the credibility of the proffered testimony.”’” State v. Brentley, 2023-Ohio-2530, ¶ 33 (3d Dist.), quoting Banks at ¶ 13, quoting State v. Wilson, 2007-Ohio-2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984). {¶53} Notably, the jury had the opportunity to view the video and audio recording of the event as well as the deputy’s body-worn camera footage of Bethany, her children, and the other witnesses. The jury also had the opportunity to observe the testimony of the witnesses, including Bethany and Perdue, to determine the credibility and weight of the evidence presented at trial. “[I]t is within the province of the jury to parse out the credible portions of witnesses’ testimonies.” State v. Waller, 2023-Ohio-493, ¶ 20 (3d Dist.). The record sufficiently supports the jury’s credibility assessments, and we find no basis to alter its analysis. See State v. Reillo, 2026-Ohio-2701, ¶ 38 (“[W]hen conducting a manifest-weight review, appellate courts must defer to the fact-finder’s witness-credibility determinations. . . Since [the victim’s] credibility was not clearly undermined, Reillo’s convictions are not against the manifest weight of the evidence.”). {¶54} Having examined the record, we do not conclude that the jury lost its way when it returned guilty verdicts with respect to the felonious assault charge. Accordingly, we overrule Perdue’s seventh assignment of error. -20- Case No. 14-25-15 First Assignment of Error Appellant’s due process rights were violated when the trial court allowed the State to question Appellant about the invocation of his rights, in violation of both the Ohio and United States constitutions. {¶55} In his first assignment of error, Perdue argues that the trial court erred by permitting the State to question him regarding his reasons for not providing an exculpatory explanation to law enforcement and about his invocation of his right to an attorney. Relevant Law {¶56} The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” This provision is applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489 (1964). “The Fifth Amendment guarantees a criminal defendant’s right against self-incrimination, which includes the right to silence during police interrogation.” State v. Harper, 2012-Ohio-4527, ¶ 32 (4th Dist.), citing Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602 (1966). “‘Once a person invokes his or her Fifth Amendment right to remain silent, the State cannot use the person’s silence [either in arrest or postarrest circumstances] as substantive evidence of guilt in its case-in-chief.’” State v. Cooper, 2020-Ohio- 4293, ¶ 18 (8th Dist.), quoting State v. Bennett, 2014-Ohio-160, ¶ 63 (9th Dist.), citing Wainwright v. Greenfield, 474 U.S. 284, 298-299, 106 S.Ct. 634 (1986). -21- Case No. 14-25-15 Application {¶57} Perdue objects to the following line of questioning on cross- examination: [State]: Mr. Perdue, you have testified today, under oath, that you are an admitted liar. Is that correct? [Perdue]: I - - yeah, I said that I lied. [State]: And it’s my understanding that you heard my opening statement. Is it correct that you brought a gun to your daughter’s birthday party? [Perdue]: Yes, that’s accurate. [State]: And did you tell Beth Perdue that that gun was not loaded when you went upstairs? [Perdue]: I didn’t tell her anything about the gun. [State]: And where were all these details that you just provided? Why didn’t you share that with Officer or Deputy Trout when he pulled you over that day? [Perdue]: I’m not sure why I didn’t share it. I wanted to talk to an attorney but - - [State]: You wanted to talk to an attorney because you had a consciousness of guilt, didn’t you? [Perdue]: No, because - - [Defense Counsel]: Objection. [Perdue]: - - I had charges against me. [Defense Counsel]: Objection. -22- Case No. 14-25-15 [Trial Court]: Overruled. [State]: My question is this. You wanted an attorney because you had consciousness of guilt? [Perdue]: No. [State]: When Deputy Trout was asking you questions, you didn’t tell him the truth, did you? [Perdue]: That’s accurate. I did not. (Feb. 5, 2025 Tr. at 232-233). {¶58} Perdue contends that the above discussion, particularly the section referencing his request for an attorney because had “consciousness of guilt” is a violation of his Fifth Amendment and Due Process rights to such a degree that his convictions must be overturned. {¶59} In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976), the defendants received Miranda warnings upon arrest. At their separate trials, both defendants provided an exculpatory story that they did not previously give to the State or law enforcement. The defendants were then, over objection, cross-examined regarding why they had not provided investigating officers or the State the exculpatory explanations provided at trial. The United States Supreme Court reversed the defendants’ convictions on the grounds that “the use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” Id. at 619. “‘[T]he -23- Case No. 14-25-15 test under Doyle is to determine whether the prosecutor’s comment was extensive – “whether an inference of guilt from silence is stressed to the jury . . .” as a basis of conviction.’” State v. Rosa, 2019-Ohio-4888, ¶ 37 (8th Dist.), quoting State v. Lanier, 1996 Ohio App. LEXIS 3286, 11 (6th Dist. Aug. 2, 1996), quoting United States v. Newman, 943 F.2d 1155, 1158 (9th Cir. 1991). {¶60} Although a prosecutor is permitted to address perceived discrepancies between a defendant’s statement to police and his testimony at trial, undoubtedly, the prosecutor’s question relating to Perdue’s request for an attorney and its implication regarding his consciousness of guilt was inappropriate and should not have been asked. {¶61} However, applying the Doyle test, we find that although the State’s question was inappropriate, in the context of the trial, we do not find that the prosecutor’s statement was extensive such that an inference of guilt from silence is stressed to the jury as a basis of conviction. See Rosa at ¶ 37. As detailed in our discussion of the weight and sufficiency of the evidence, an overwhelming amount of evidence supports Perdue’s convictions. The prosecutor’s references to “consciousness of guilt” were so minor and oblique when compared to the overwhelming evidence against Purdue, as to be harmless beyond a reasonable doubt. Moreover, the jury found Perdue not guilty of several of the most serious charging pending against him, namely felonious assault in violation of R.C. 2903.11(A)(1) and kidnapping. -24- Case No. 14-25-15 {¶62} Accordingly, Perdue’s first assignment of error is overruled. Second Assignment of Error The trial court erred when it failed to exclude the expert testimony where no expert report was provided and then instructed the jury about expert testimony. {¶63} In his second assignment of error, Perdue contends the trial court erred by not excluding expert testimony of Bethany’s medical providers where no expert report was disclosed as required by Crim.R. 16(K). Perdue claims he was “ambushed by the testimony of medical professionals who [were] presented as a fact witness where they testified as to the causation of the victim’s injuries when that information was not contained in discovery and the error was not cured, but compounded, by a jury instruction about expert witnesses.” (Appellant’s Brief at 11). Standard of Review {¶64} An appellate court revie