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Date: 11-19-2020
Case Style:
STATE OF OHIO v. THERON H. ELLIS, SR.
Case Number: 28638
Judge: Mary Donovan
Court: IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Plaintiff's Attorney: STEPHANIE L. COOK and ANDREW D. SEXTON, Assistant Prosecuting Attorney, City of Dayton Prosecutor’s Office
Defendant's Attorney:
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Dayton, Ohio - Criminal defense lawyer represented defendant Theron H. Ellis, Sr. with d appeals his conviction for one count of violating a civil stalking protection order (CSPO), in violation of R.C. 2919.27(A)(2), a misdemeanor of the first degree.
{¶ 2} The record establishes that Ellis resided next door to the victim, Phillip
Brooks, in Dayton, Ohio. Brooks testified that he had known Ellis for approximately six
years. In fact, Brooks described his relationship with Ellis as “sociable” until some point
in 2018, when Brooks applied for a CSPO against Ellis. Tr. 23. After a hearing held on
October 2, 2018, Brooks was granted a CSPO against Ellis on October 9, 2018. Brooks
was served with the CSPO on October 10, 2018. The CSPO was scheduled to remain
in effect until October 4, 2019.
{¶ 3} The incident which formed the basis for Ellis’s conviction occurred on
September 22, 2019, when Brooks returned from a shopping trip for another one of his
neighbors, Laverne Turner, who lived next door to Ellis. When Brooks arrived at Turner’s
residence, Ellis was outside washing and/or waxing his vehicle. Brooks testified that, as
he walked to the rear of his vehicle to retrieve Turner’s supplies, Ellis walked over to
where his (Ellis’s) dog was laying, grabbed it by its collar, and approached Brooks; the
dog weighed approximately 100 pounds,. At that point, Ellis ordered his dog to “get him,”
and “bite his a**.” Brooks testified that Ellis also stated “[i]f he [Brooks] comes over
here[,] bite his a**.” Tr. 27. Brooks testified that Ellis was only 10 to 15 feet away when
the threat was made.
{¶ 4} Brooks testified that, at that point, he asked Ellis, “You’re gonna sick [sic]
your dog on me?” and Ellis responded, “I’ll f*** you up”, “Come over here, and I’ll f*** you
up”, and “I’ll beat your f****** a**.” Tr. 30-31. According to Brooks, there was no one
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else present at the time the threats were made, and Ellis was looking directly at him.
{¶ 5} Brooks testified that he did not say anything else to Ellis after being
threatened. Rather, Brooks got back in his vehicle, drove to his residence, and
contacted the Dayton Police Department. Shortly thereafter, the police arrived at
Brooks’s residence and an incident report was made. Dayton Police Officer Joshua
Gundaker testified that he attempted to make contact with Ellis, but Ellis had left the scene
immediately after the incident.
{¶ 6} Turner testified that he was in his garage at the time that the incident occurred
and therefore did not directly witness the confrontation between Brooks and Ellis. Turner
testified, however, that he heard Ellis tell his dog, “if he [Brooks] comes over here, * * * to
bite him.” Tr. 49. Turner also testified that he heard Brooks respond, “why would you
want to sick [sic] your dog on me,” to which Ellis replied, “if you come over here[,] I’ll f***
you up.” Tr. 50.
{¶ 7} Ellis testified on his own behalf, asserting that Brooks was the aggressor and
initiated the incident when Ellis first exited his vehicle, telling Ellis, “get your dog before I
fuck him up.” Tr. 81. Ellis testified that he then simply asked Brooks to “leave my dog
alone” and “don’t even step on my property.” Id. Ellis testified that after the incident
occurred, he went inside his house and took a shower, after which he left his residence
in order to comply with the CSPO. Tr. 87.
{¶ 8} A criminal complaint was filed against Ellis for violating the terms of the
CSPO. At his arraignment on October 2, 2019, Ellis pled not guilty. A trial was held on
November 19, 2019. At the close of the State’s case, Ellis made a motion for acquittal
pursuant to Crim.R. 29, which was overruled by the trial court. Ellis was found guilty of
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violating the CSPO, and the trial court imposed a sentence of 180 days in jail, with the
entire sentence suspended. Ellis was placed on one year of basic supervised probation
and ordered to complete an anger management program and to have no contact with
Brooks.
{¶ 9} It is from this judgment that Ellis now appeals.
{¶ 10} Ellis’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN OVERRULING ELLIS’ MOTION
FOR ACQUITTAL (CRIM.R. 29) WHERE THE STATE FAILED TO PROVE
EACH ELEMENT OF R.C. 2919.27(A)(2).
{¶ 11} Ellis contends that the trial court erred when it overruled his Crim.R. 29
motion for acquittal because the State failed to adduce sufficient evidence to establish
that he violated the terms of the CSPO. Ellis also argues that the State failed prove that
he acted “recklessly” when he violated the CSPO.
{¶ 12} } Crim.R. 29(A) provides, in relevant part, that a trial 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 on one or more offenses charged in the * * * complaint, if
the evidence is insufficient to sustain a conviction of such offense or offenses.” The
standard of review for a denial of a Crim.R. 29 motion is the same as the standard of
review for a sufficiency of the evidence claim. State v. Carter, 72 Ohio St.3d 545, 553,
651 N.E.2d 965 (1995).
{¶ 13} As this Court has previously noted:
“A sufficiency of the evidence argument disputes whether the State
has presented adequate evidence on each element of the offense to allow
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the case to go to the jury or sustain the verdict as a matter of law.” State v.
Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State
v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When
reviewing whether the State has presented sufficient evidence to support a
conviction, the relevant inquiry is whether any rational finder of fact, after
viewing the evidence in a light most favorable to the State, could have found
the essential elements of the crime proven beyond a reasonable doubt.
State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty
verdict will not be disturbed on appeal unless “reasonable minds could not
reach the conclusion reached by the trier-of-fact.” Id.
In contrast, “a weight of the evidence argument challenges the
believability of the evidence and asks which of the competing inferences
suggested by the evidence is more believable or persuasive.” Wilson at
¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a greater
amount of credible evidence and relates to persuasion”). When evaluating
whether a conviction is against the manifest weight of the evidence, the
appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider witness credibility, 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
reversed and a new trial ordered.” Thompkins at 387, citing State v. Martin,
20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
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Because the trier of fact sees and hears the witnesses at trial, we
must defer to the factfinder's decisions whether, and to what extent, to credit
the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery
No. 16288, 1997 WL 476684 (Aug. 22, 1997). The fact that the evidence
is subject to different interpretations does not render the conviction against
the manifest weight of the evidence. Wilson at ¶ 14. A judgment of
conviction should be reversed as being against the manifest weight of the
evidence only in exceptional circumstances. Martin at 175.
State v. Hill, 2d Dist. Montgomery No. 26581, 2015-Ohio-5166, ¶ 25-27.
{¶ 14} R.C. 2919.27(A)(2) provides that “[n]o person shall recklessly violate the
terms of * * * [a] protection order issued pursuant to section 2151.34, 2903.213, or
2903.214 of the Revised Code[.]” Whoever recklessly violates the terms of such a
protection order is guilty of violating a protection order, which is a misdemeanor of the
first degree. R.C. 2919.27(B)(1)-(2). R.C. 2901.22(C) provides:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk
that the person's conduct is likely to cause a certain result or is likely to be
of a certain nature. A person is reckless with respect to circumstances
when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are
likely to exist.
{¶ 15} As previously stated, after a hearing held in October 2018, Brooks was
granted a CSPO against Ellis. Brooks was served with the CSPO on October 10, 2018,
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and it was scheduled to remain in effect until October 4, 2019. The CSPO1 stated in
pertinent part:
THE COURT HEREBY ORDERS:
That the above named Respondent [Ellis] be restrained from committing
acts of abuse or threats of abuse against the Petitioner [Brooks] and other
protected persons named in this Order, as set forth below. Additional
terms of this Order are set forth below.
* * *
RESPONDENT SHALL NOT ABUSE the protected persons named in this
Order by harming, attempting to harm, threatening, following, stalking,
harassing, forcing sexual relations upon them, or by committing sexually
oriented offenses against them. * * *
{¶ 16} The evidence presented by the State established that on September 22,
2019, Brooks had just returned from a shopping trip for his neighbor, Turner, who lived
next door to Ellis. When Brooks arrived at Turner’s residence, Ellis was outside washing
and/or waxing his vehicle. As Brooks walked to the rear of his vehicle to retrieve Turner’s
supplies, Ellis walked over to his dog, who weighed approximately 100 pounds, grabbed
it by its collar, and approached Brooks. Ellis then ordered his dog to “get him,” and “bite
his a**.” Brooks testified that Ellis also stated “[i]f he [Brooks] comes over here[,] bite his
a**.” Tr. 27. Ellis was only 10 to 15 feet away when the threat was made.
{¶ 17} Brooks testified that, at that point, he asked Ellis, “You’re gonna sick [sic]
your dog on me?” and Ellis responded, “I’ll f*** you up”, “Come over here, and I’ll f*** you
1 The CSPO against Ellis was admitted into evidence at trial as State’s Exhibit 1.
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up”, and “I’ll beat your f****** a**.” Tr. 30-31. Brooks testified that there was no one else
present at the time the threats were made and the Ellis was looking directly at him.
{¶ 18} Turner did not directly witness the confrontation between Brooks and Ellis
but testified that he heard Ellis tell his dog, “if he [Brooks] comes over here, *** to bite
him.” Tr. 49. Turner also testified that he heard Brooks respond, “why would you want
to sick [sic] your dog on me,” to which Ellis replied, “if you come over here[,] I’ll f*** you
up.” Tr. 50.
{¶ 19} Brooks and Turner testified that Ellis first initiated threatening verbal contact
with Brooks. Brooks’s and Turner’s testimony regarding Ellis’s statements and conduct
was consistent. Aside from Ellis’s own testimony, the evidence adduced at trial
established that Ellis acted in a threatening manner towards Brooks in clear violation of
the language in the CSPO. The trial court “as finder of fact, may believe all, part, or none
of a witness's testimony,’ ” and the trial court was entitled to disbelieve Ellis's testimony.
State v. Flores-Lopez, 2017-Ohio-690, 85 N.E.3d 534, ¶ 63 (2d Dist.).
{¶ 20} For the foregoing reasons, we conclude that a rational finder of fact, after
viewing the evidence in a light most favorable to the State, could have found that Ellis
recklessly violated the CSPO by threatening and harassing Brooks. Additionally, having
reviewed the entire record, we cannot conclude that the trier of fact clearly lost its way
and created a manifest miscarriage of justice. The trial court clearly credited the
testimony of the State's witnesses over Ellis, and we defer to the trial court's assessment
of credibility. Having concluded that Ellis's conviction was supported by sufficient
evidence and was not against the manifest weight of the evidence, his assignment of
error is overruled,
Outcome: The judgment of the trial court is affirmed.
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