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Date: 02-17-2019
Case Style:
Case Number: 2018CA00022
Judge: Earle E. Wise, Jr
Court: COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: JASON REESE
KRISTINA M. LOCKWOOD
Defendant's Attorney: AARON KOVALCHIK
Description:
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In 2017, appellant and his 12 year-old daughter S.H were living with their
cousin, Josephine Gulling. On the morning of December 15, 2017, appellant became
angry when S.H was slow to get out of bed for school. Appellant began yelling, struck S.H
in the mouth, grabbed her by her hair and dragged her out of bed. Appellant struck S.H's
head on the dresser in the process. Gulling came running when she heard yelling and
witnessed appellant dragging S.H out of bed and spinning her around the room by her
hair.
{¶ 3} As a result of the incident, S.H had a bump on her head and a headache.
Before S.H went to school that day, Gulling advised her to speak with a counselor about
what happened. S.H therefore reported the incident once she got to school. Stark County
Sherriff's Department School Resource Officer, Deputy Christopher Ousley was
dispatched to the school to investigate. Ousley then spoke with both Gulling and S.H who
were seated in separate rooms. Their accounts of what took place were consistent.
{¶ 4} Ousley recruited Deputy Shane Simeck to assist as Simeck specializes in
domestic violence cases. The two went to speak with appellant who denied intentionally
grabbing S.H by the hair and causing her to strike her head on the dresser.
{¶ 5} Appellant was arrested and charged with one count of domestic violence
pursuant to R.C. 2919.25(A). Appellant pled not guilty to the charge and elected to
proceed to a jury trial which was held on January 21, 2018. S.H, Gulling, and the deputies
Stark County, Case No. 2018CA00022 3
testified for the state. Appellant testified on his own behalf. After hearing the evidence
and deliberating, the jury convicted appellant as charged. The trial court suspended a 180
day jail term and placed appellant on community control for two years.
{¶ 6} Appellant filed an appeal and the matter is now before this court for
consideration. Appellant raises one assignment of error:
I
{¶ 7} "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT
AND SUFFICIENCY OF THE EVIDENCE."
{¶ 8} In his sole assignment of error, appellant argues his conviction is against
the manifest weight and sufficiency of the evidence. We disagree.
{¶ 9} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The 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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing
court is to 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 jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
Stark County, Case No. 2018CA00022 4
in the exceptional case in which the evidence weighs heavily against the conviction."
Martin at 175.
{¶ 10} Appellant was charged with one count of domestic violence pursuant to R.C.
2919.25(A). In order to prove the charge, the state was required to produce evidence to
demonstrate appellant knowingly caused or attempted to cause physical harm to a family
or household member. R.C. 2901.01(A)(3) defines “physical harm to persons” as “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.”
{¶ 11} Appellant first argues the state failed to produce evidence to demonstrate
that he caused or attempted to cause harm to S.H. In support of his argument, appellant
points to the lack of photos, medical reports or testimony concerning any physical harm
sustained by S.H. We note however, that both S.H and Gulling testified S.H had a bump
on her head from the incident, and S.H testified she also had a headache. T.124, 145.
Moreover, even if that were not true, the victim of a domestic violence need not suffer
actual physical harm in order to support a conviction under R.C. 2919.25(A). Rather, an
attempt to cause harm is sufficient. State v. Ford, 5th Dist. Stark No. 2012CA142, 2013
Ohio-1883 ¶ 16. We therefore reject appellant's argument.
{¶ 12} Next appellant argues that neither Gulling nor S.H were credible. It is well
settled, however, that the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d
180 (1990). The jury was free to accept or reject any or all of the evidence offered by the
parties and assess the witness's credibility. Indeed, the jurors need not believe all of a
witness's testimony, but may accept only portions of it as true. State v. Raver, Franklin
App. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
Stark County, Case No. 2018CA00022 5
N.E.2d 548 (1964). Upon review, we find nothing to indicate the jury in this matter lost it
way in making its credibility determinations.
{¶ 13} We find the state produced sufficient evidence to support appellant's
conviction, and the conviction is not against the manifest weight of the evidence.
{¶ 14} The sole assignment of error is overruled.
Outcome: The judgment of the Canton Municipal Court, Stark County, Ohio is
affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: