Youngstown Daily Legal News

Bar patron who punched victim in nose loses appeal

JESSICA SHAMBAUGH
Special to the Legal News
Published: February 27, 2015

A three-judge appellate panel recently affirmed a Tuscarawas Court of Common Pleas ruling finding a man guilty of felonious assault for his actions during a bar fight.

The 5th District Court of Appeals rejected Matthew Dailey’s arguments that his conviction was against the manifest weight and sufficiency of the evidence and ruled that the lower court properly allowed witnesses to testify about Dailey’s affinity for violence.

“Appellant’s statements that he liked to fight and was a ‘bad ass’ were relevant to prove that appellant had guilty knowledge and that appellant did not mistakenly or accidentally strike the victim in this case,” Judge Craig Baldwin wrote on behalf of the appellate court.

The indictment charging Dailey with felonious assault alleged that he punched a man in the face in a bar parking lot, causing him to lose consciousness and suffer a head injury.

He pleaded not guilty to that charge and the matter proceeded to a jury trial.

At trial, Kelly Nalley testified that she was working at D Kay’s Bar and Grill on Sept. 11, 2013 when Dailey entered the bar with two women.

She said Dailey and one of the bar’s regular customers, Clay Clark, initially had a disagreement about their employment, but resolved the matter and spent the night playing billiards, dancing and talking with the women.

Nalley described Clark as a “sweet man” and someone who shoot everyone’s hand and befriended other bar patrons.

In contrast, she recalled speaking to Dailey at the juke box, where he told her that “he liked confrontation,” was a “bad ass” and “liked to fight.”

At the end of the night, Nalley said she walked out of the bar with Clark, Dailey and the two women.

She said when Clark extended his hand to shake Dailey’s, Dailey punched him in the nose and knocked him out.

She recalled Clark falling to the ground but denied that there was any physical contact between the men prior to the punch.

Kimberly Taylor also testified about her night at the bar.

She explained that she and a friend picked Dailey up and the group went to D Kay’s.

She said she did not know Dailey prior to that night and he made her uncomfortable by talking about fighting having knocked people out before.

Taylor said the group talked to Clark throughout the night and that he was “very nice and respectful and was generous.”

At the end of the night, she said Dailey whistled for her and Clark asked, “Did he just call you ladies like dogs?”

That’s when she said Clark walked her and her friend to their car and Dailey punched him in the face without provocation.

The parties presented evidence that after the event, Clark told police and doctors that he thought he was attacked by two people and was kicked in the head and chest.

However, a doctor testified that memory loss and confusion were possible because Clark had lost consciousness and suffered a subdural hematoma.

He also had a nasal bone fracture and a tooth knocked out.

Clark testified that he did not remember anything happening after he tried to shake Dailey’s hand, did not remember talking to doctors or the police and did not remember hearing Dailey whistle for the women.

In his own defense, Dailey testified that he was almost to his car when he felt Clark punch him in the side of his head.

He said he turned around, swinging blindly and unknowingly struck Clark.

The jury elected not to believe his testimony and instead found him guilty of felonious assault.

On appeal, Dailey first argued that the trial court should not have allowed Nalley and Taylor to testify that he bragged about fighting because it constituted prior bad acts.

“We concur with (the state) that testimony that appellant bragged about liking to fight on the night in question is not evidence of appellant’s character or evidence of a bad act. Rather, such testimony related to statements made by appellant to witnesses on the night in question,” Baldwin stated.

The judges ruled that the testimony was relevant to show that Dailey acted knowingly, even if it did constitute other bad acts testimony.

The panel ultimately agreed that even if an error did take place, Dailey was not prejudiced by it because two witnesses testified that he struck Clark intentionally and without provocation.

He next argued that his conviction was against the manifest weight and sufficiency of the evidence.

Again, the judges disagreed.

They held that to commit felonious assault, an individual must knowingly cause serious physical harm to another.

Clark’s medical records showed that he suffered serious physical harm and the witnesses provided that Dailey caused that harm.

“Based on the testimony set forth in detail in the statement of facts above, we find that, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that appellant knowingly caused physical harm to Clark,” Baldwin wrote.

Finding no merit to Dailey’s arguments, the judges affirmed the lower court’s ruling.

The case is cited State v. Dailey, 2015-Ohio-290.

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