COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71979 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ANTONIO ODOM : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-342797. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Denise R. Cameron, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Miles A. Camp, Esq. Weaver & Associates 138 W. 6th Street No. 213 Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Antonio Odom, defendant-appellant, appeals from his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, Case No. CR-342797, of the offense of domestic violence in violation of R.C. 2919.25. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On September 12, 1996, defendant-appellant was indicted by the Cuyahoga County Grand Jury in a two-count indictment arising out of a confrontation between defendant-appellant and his former girlfriend, Angiese Drake. The first count of the indictment charged defendant-appellant with domestic violence in violation of R.C. 2919.25. Count one also contained a furthermore clause arising out of a prior domestic violence conviction on or about January 12, 1996. The second count charged defendant-appellant with aggravated burglary in violation of R.C. 2911.11. On September 26, 1996, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to both counts contained in the indictment. Prior to the beginning of the scheduled trial date in this case, defendant-appellant executed in open court a written waiver of his right to a jury trial. The trial court then filed the waiver with the clerk of courts in accordance with R.C. 2945.05. On November 25, 1996, a bench trial commenced in this action. The state's case consisted of the testimony of two witnesses; the -3- victim, Angiese Drake; and Officer Kevin Ressler of the Garfield Heights Police Department. Ms. Drake testified that she first became acquainted with defendant-appellant in August, 1995. Approximately one month later, Ms. Drake and defendant-appellant began living together. (T. 15). A series of domestic violence incidents followed shortly thereafter culminating with Ms. Drake's move from their joint residence in early August, 1996. (T. 18). Ms. Drake testified that she was forced to permanently leave the residence in order to protect herself from further violence. (T. 18-19). Ms. Drake testified further than on August 8, 1996 she telephoned defendant-appellant sometime between 8:00 a.m. and 9:00 a.m. in an attempt to retrieve personal belongings she had left at the former residence. Ms. Drake was somewhat concerned since, on prior occasions when she had temporarily moved from the home after a domestic dispute, defendant-appellant had allegedly destroyed a number of her personal items. (T. 19). Defendant-appellant agreed to return Ms. Drake's belongings at his convenience but stated that she would have to wait until defendant-appellant completed work for the day. The phone conversation ended. Soon after, defendant-appellant unexpectedly appeared at Ms. Drake's home in Garfield Heights, Ohio. According to Ms. Drake, defendant-appellant entered the home without permission, proceeded to an upstairs bedroom and confronted Ms. Drake. (T. 20). During this episode, defendant-appellant allegedly laid down on top of Ms. Drake with all his weight pinning her on the bed. He also grabbed -4- her shirt collar with one hand and Ms. Drake's left calf, which he had previously injured, with the other. The state introduced as State's Exhibit 1 a photograph of Ms. Drake's left calf depicting a discolored bruise. The photograph was taken within thirty minutes of the incident. (T. 56). Defendant-appellant left the residence at the conclusion of the altercation as Ms. Drake was attempting to call the police. (T. 24). The second and final witness for the state was Officer Kevin Ressler of the Garfield Heights Police Department who testified that he responded to a call regarding domestic violence involving Ms. Angiese Drake on August 8, 1996. (T. 54). Officer Ressler stated that, upon his arrival, Ms. Drake was visibly upset and there was obvious bruising on Ms. Drake's left calf. (T. 55-56). Officer Ressler arrested defendant-appellant at his home later that same day. (T. 57). The sole witness for the defense was Antonio Odom, defendant- appellant, who maintained that he only went over to Ms. Drake's house to discuss the possibility of reuniting with her. (T. 79). Defendant-appellant maintained that he was allowed to enter the home and proceeded to find Ms. Drake. The only physical contact defendant-appellant admitted to was kissing Ms. Drake once on the cheek as he entered the bedroom. (T. 80). After a short discussion, defendant-appellant and Ms. Drake proceeded to go downstairs in the kitchen. An argument with Ms. Drake's aunt ensued and defendant-appellant left the home. (T. 81-82). -5- At the conclusion of the case, the trial court granted the defense motion for acquittal pursuant to Crim.R. 29 only as it related to the charge of aggravated burglary. (T. 99). After deliberations, the trial court found defendant-appellant guilty of domestic violence pursuant to R.C. 2919.25 as charged in the first count of the indictment. On January 14, 1997, the trial court sentenced defendant-appellant to two years of community controlled sanctions subject to the general supervision and control of the Cuyahoga County Probation Department. (T. 117). On January 31, 1997, defendant-appellant filed a timely notice of appeal from his conviction in the trial court. -6- II. ASSIGNMENT OF ERROR Antonio Odom's defendant-appellant's, sole assignment of error states: THE VERDICT AND JUDGMENT RENDERED BELOW WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND INSUFFICIENT AS A MATTER OF LAW. A. THE ISSUE RAISED: WEIGHT AND SUFFICIENCY OF THE EVIDENCE. Defendant-appellant argues that his conviction of the offense of domestic violence was based upon evidence which was inconsistent and inherently unreliable. Defendant-appellant argues further that the state completely failed to prove the elements of the offense of domestic violence beyond a reasonable doubt. Specifically, it is defendant-appellant's position that the state failed to demonstrate that defendant-appellant knowingly attempted to cause physical harm to Ms. Drake; that defendant-appellant's conduct was reckless; or that Ms. Drake reasonably believed that defendant-appellant would cause her imminent physical harm. Defendant-appellant's sole assignment of error is not well taken. STANDARD OF REVIEW FOR SUFFICIENCY OF THE EVIDENCE. In State v. Jenks (1991), 61 Ohio St.3d 259, the Ohio Supreme Court re-examined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light -7- most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed. State v. Jenks, supra, paragraph two of the syllabus. A judgment will not be reversed upon insufficient or conflicting evidence if it is supported by competent credible evidence which goes to all the essential elements of the case. Cohen v. Lamko (1984), 10 Ohio St.3d 167. Where there is substantial evidence upon which the trier of fact has based its verdict, a reviewing court abuses its discretion in substituting its judgment for that of the jury as to the weight and sufficiency of the evidence. State v. Nicely (1988), 39 Ohio St.3d 147. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230. -8- C. STANDARD OF REVIEW FOR MANIFEST WEIGHT OF THE EVIDENCE. State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra. In determining whether a judgment of conviction is against the manifest weight of the evidence, this court in State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, adopted the guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus. These factors, which this court noted are in no way exhaustive, include: 1) Knowledge that even a reviewing court is not required to accept the incredible as true; -9- 2) Whether evidence is uncontradicted; 3) Whether a witness was impeached; 4) Attention to what was not proved; 5) The certainty of the evidence; 6) The reliability of the evidence; 7) The extent to which a witness may have a personal interest to advance or defend their testimony; and 8) The extent to which the evidence is vague, uncertain, conflicting or fragmentary. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. D. DEFENDANT-APPELLANT'S DOMESTIC VIOLENCE CONVICTION WAS NOT AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. In this case, defendant-appellant was indicted under R.C. 2919.25(A) which provides: (A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. During trial, it is clear that, when viewing the evidence presented in a light most favorable to the prosecution, the testimony of the victim Angiese Drake as well as that of Officer Kevin Ressler, supports the trial court's finding that defendant- appellant did, in fact, commit the offense of domestic violence as indicted. Ms. Drake testified that defendant-appellant and herself had formerly lived together. Therefore, Ms. Drake was a household member pursuant to the statute. See R.C. 2919.25(E)(1)(a). Ms. -10- Drake testified further that, on the day in question, defendant- appellant came into her bedroom; pinned her on the bed by grabbing her collar and her left leg which he had previously injured one week earlier; and refused to allow her off the bed for a period of time. Similarly, Officer Ressler testified that, after arriving on the scene, he observed that Ms. Drake's left calf was red and bruised. Clearly, the essential elements of the offense of domestic violence were proven beyond a reasonable doubt. Defendant-appellant knowingly trapped Ms. Drake on the bed and attempted to cause her physical harm by grabbing an injured part of her body. Applying the standard of review for sufficiency of the evidence as set forth in State v. Jenks, supra, to the underlying facts, this court finds after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of domestic violence proved beyond a reasonable doubt. In addition, since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact- finder. State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the trial court's verdict in this case is against the manifest weight of the evidence. Accordingly, a review of the record demonstrates that the trial court did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant -11- guilty of domestic violence. Defendant-appellant's conviction was supported by substantial credible evidence upon which the trier of fact could reasonably conclude that defendant-appellant was guilty of the underlying offense. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. It is ordered that appellee recover of appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, J. and PATTON, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE -12- N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .