COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72843 CITY OF GARFIELD HEIGHTS ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) -vs- ) AND ) FREDERICK DURHAM ) OPINION ) Defendant-Appellant ) Date of Announcement of Decision: FEBRUARY 19, 1998 Character of Proceeding: Criminal appeal from Garfield Hts. Municipal Court Case No. 2176A Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: TIMOTHY RILEY, ESQ. DENNIS N. LoCONTI, ESQ. 5407 Turney Road Forbes, Fields & Associates Garfield Hts., Ohio 44125 700 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113-1332 -2- JAMES M. PORTER, P.J.: Defendant-appellant Frederick Durham appeals from his conviction following a jury trial for domestic violence in the Garfield Heights Municipal Court in violation of R.C. 2919.25(A) in that defendant did knowingly cause or attempt to cause physical harm to Leslie Durham, his estranged wife. Defendant claims the trial court erred in excluding evidence from the parties' divorce proceedings which he wanted to use to impeach the wife/victim's testimony. Defendant further contends that the trial court should have granted his motion for acquittal and the conviction was against the manifest weight of the evidence. We find no reversible error and affirm. On March 25, 1997, the defendant was charged in the Garfield Heights Municipal Court with two counts of domestic violence in violation of R.C. 2919.25(A) and (C). Specifically, that defendant did knowingly cause or attempt to cause physical harm to Leslie Durham, and did knowingly by threat of force cause a family member Leslie Durham to wit: Wife of Defendant, to believe that said Frederick Durham will cause imminent harm to Leslie Durham a family or household member. Defendant entered a plea of not guilty. A jury trial was held on June 26, 1997, at which the court twice overruled defendant's Civ.R. 29(A) motion for acquittal. On June 27, 1997, the jury found the defendant guilty of the offense of domestic violence under R.C. 2919.25(A) and not guilty under section (C). Defendant -3- was sentenced to the maximum sentence of six months in jail and a timely appeal to this Court ensued. The evidence at trial revealed the following. Defendant Frederick Durham and the victim Leslie Durham were husband and wife living separately while going through a divorce. The couple had been living separately since November 1996. Mrs. Durham had changed the door locks twice since their separation because she did not want him to get in. On March 22, 1997, at approximately 1:25 a.m., Leslie Durham testified that she was awakened by the defendant undressing and entering her bed after he entered the 13707 Thornhurst home uninvited. After repeatedly asking defendant to leave, Mrs. Durham slipped downstairs to call the Garfield Heights Police because she feared for her safety. She testified that the defendant followed her down the stairs making a number of abusive comments including the threat to whoop her ass if he ever found her with another man. Mrs. Durham stated that she took his threats seriously because of defendant's past actions and tendency toward violence. Defendant fled the scene before the police arrived taking with him all of the phones in the house. A warrant was issued for defendant's arrest alleging domestic violence based on defendant's threats. On March 25, 1997, defendant again entered the Thornhurst home uninvited. He found Mrs. Durham on the phone and began a verbal assault against her. At this point, Mrs. Durham's brother, who was on the phone with her, hung up and called the Garfield Heights Police. Mrs. Durham testified that when the police arrived the -4- defendant told her not to answer the door. Then, when she attempted to let the officers in, defendant pushed her down on the stairway injuring her arm. He held her down on the stairs with his hand over her mouth so she could not call to the police for help. Defendant denied that these events took place. He testified that he was at the house to obtain his wife's signature on some real estate papers. However, the Garfield Heights police officers testified that they heard Mrs. Durham's muffled screams as they approached her door. Finally, Mrs. Durham was able to break away from the defendant and let the officers in. They found the defendant hiding in the basement. At trial, defendant sought to present evidence as to events which took place in the divorce case between the parties. This was offered for the stated purpose of impeaching the testimony of Mrs. Durham and for showing that she had a motive or propensity to lie about the charges. The trial court excluded this evidence which was proffered in the record. The trial judge instructed the jury that the defendant was not charged with a violation of a civil restraining order. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT ERRED WHEN IT PREVENTED APPELLANT FROM INTRODUCING EVIDENCE FROM THE DIVORCE CASE PENDING BETWEEN APPELLANT AND THE VICTIM FOR PURPOSES OF IMPEACHMENT AND PROOF OF THE VICTIM'S MOTIVE AND PROPENSITY TO LIE UNDER OATH AND LIE ABOUT APPELLANT, AND HER STATE OF MIND. -5- Defendant contends the trial court abused its discretion in barring evidence from the divorce proceedings between the parties because it was relevant or admissible under Evid.R. 401(B), 403 and 608(B). Defendant contends that certain episodes in the divorce case were relevant under Evid.R. 404(B) (other crimes, wrongs or acts) to establish Mrs. Durham's motive, intent and plan to be untruthful about her husband. However, no findings of fact were ever made in the Domestic Relations Court to support these contentions and after a full consideration of these facts by the trial judge, she declined to have these events presented to the jury. Evid.R. 401 defines relevant evidence as follows: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evid.R. 403(A) provides: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury." The determination of the admission or exclusion of evidence is within the discretion of the trial court and will not be reversed without an abuse of discretion. State v. Combs(1991), 62 Ohio St.3d 278, 284; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of syllabus. [T]he term abuse of discretion connotes more than error of law or judgment: it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. -6- Nielson v. Meeker (1996), 112 Ohio App.3d 448, 450. Therefore, after careful review of the defendant's evidence, the trial court was well within its discretion to find that the events were not of consequence to the determination of the action. Allegations that Mrs. Durham lied to the Domestic Relations Court presented a danger of confusion of issues, and may have misled the jury causing unfair prejudice to the prosecution. What is known is that the defendant was ordered out of the marital home because of abusive behavior. Evidence that the wife obtained a restraining order in Domestic Relations Court was indicative of the victim's fear and defendant's capacity for violence, rather than malice against him. Whether testimony or evidence is relevant or irrelevant, confusing or misleading, is best decided by the trial judge who is in a position to analyze the impact on the jury. The defendant attempted to introduce events in the divorce proceeding during cross-examination to somehow impeach Mrs. Durham under Evid.R. 608(B). Specific instances of conduct of a witness for the purpose of attacking the witness' character for truthfulness may not be proved by extrinsic evidence due to a legitimate state interest in preventing criminal trials from bogging down in matters collateral to the crime for which defendant was charged. State v. Skoke (1995), 105 Ohio App.3d 226, 243. Although extrinsic evidence may be used on cross-examination to determine the witness' character for truthfulness, this too is subject to the trial court's discretion, and it must be clearly probative of truthfulness. -7- After a review of the proffered evidence, we find it was of questionable relevance, could have plunged the jury into the domestic relations proceedings and was inconclusive on the victim's truthfulness.We find no abuse of discretion in the trial court's exclusion of the evidence. Assignment of Error I is overruled. II. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S RULE 29 MOTION FOR ACQUITTAL. III. THE JURY'S VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks(1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any -8- 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.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the factfinder's verdict. As the Supreme Court of Ohio stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in -9- 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). R.C. 2919.25(A) defines the crime of domestic violence as knowingly causing or attempting to cause physical harm to a family or household member. Mrs. Durham testified that on March 25 her husband pushed her down on the stairs and held her down with his hand over her mouth causing injury to her arm. This was corroborated to a degree by the Garfield Heights police officers who testified to hearing her muffled screams and cries for help when they approached the residence. The officers were prepared to break down the door to assist her. (Tr. 145-46; 151-58). The act of throwing someone to the ground, holding her down, covering her mouth and preventing her from answering the door was sufficient for the jury to find beyond a reasonable doubt that defendant knowingly caused or attempted to cause physical harm to Mrs. Durham. The jury did not lose its way and the conviction was not a manifest miscarriage of justice. For the same reasons, we find that the jury's verdict was not manifestly against the weight of the evidence. Assignments of Error II and III are overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant its 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 Garfield Hts. Municipal 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. NAHRA, J., and PATTON, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See 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 announcement of decision by the .