COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73248 CITY OF NORTH OLMSTED : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ZARACH B. MORGAN : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 20, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, No. 97-CRB-772. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Donald P. Albenze, Esq. Prosecutor, City of North Olmsted 23823 Lorain Road, No. 270 North Olmsted, OH 44070 For Defendant-Appellant: Louis A. Tuzi, Esq. 761 Stoney Brook Road Sagamore Hills, OH 44067 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant Zarach B. Morgan ( appellant ) appeals his conviction after trial to the bench in the Rocky River Municipal Court for domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. Appellant asserts that the trial court erred when it: overruled his motion for acquittal pursuant to Crim.R. 29; found him guilty where an essential element of the crime was not proven; infringed upon his right to bear arms when it ordered his guns to be confiscated as a condition of probation; and entered a judgment which was against the manifest weight of the evidence. Finding no error in the proceedings below, we affirm. The facts giving rise to this appeal are as follows. In the early morning hours of May 11, 1997, the North Olmsted police were summoned to appellant's home by his wife, who alleged a domestic violence incident was occurring at their home. As a result of the incident, responding Officer R. Cox filed a complaint alleging that appellant knowingly caused or attempted to cause physical harm to his wife, to wit: he struck her about the right side of the face and threatened to kill her. Appellant pled not guilty to the charge against him and a bench trial was held August 28 and 29, 1997. The city called the victim, appellant's wife, Verneata (Dee) Morgan, who testified that she called the police because she and appellant were involved in an argument and she wanted the police to calm him down because he was upset. She stated that during the altercation appellant had not slapped her, had made no threats, and used no weapons. On cross-examination, she testified that during -3- this argument with appellant she threw shoes and a statue at him. She testified that although she thought appellant might become upset and retaliate, he did not. She admitted that appellant did, however, grab and restrain her when they got into a face-to-face confrontation. After appellant restrained and grabbed her she told him she was going to call the police. She testified that although a gun was in the house, it was under lock and key in the basement and appellant had made no attempt to go for it. She stated that when asked by the dispatcher whether there was a gun in the house, she had responded affirmatively. She said that she did not believe that appellant was going to hurt her in any way, shape, or form. Later, at the police station, when she told Sgt. Cox that she would not write a statement she could tell Sgt. Cox was not pleased. On redirect examination, Ms. Morgan reiterated her position indicating that during the altercation appellant had made no threats against her and did not slap her. She denied making either oral or written statements to the police indicating that appellant had slapped her that evening. Next, the city called Sgt. R. Cox, the complainant, who testified that on May 11, 1997, he arrived at appellant's house in response to a radio dispatch call indicating a domestic violence incident with the possibility of a gun being involved. Approximately four police cars arrived and set up a perimeter around the house. At the scene, he spoke with appellant's wife in the police cruiser. He indicated that she was very distraught and she told him that appellant had gotten upset and threatened to kill -4- her and bury her beneath the ground . After he talked to Ms. Morgan, he talked to appellant, who admitted that he slapped his wife. Appellant was then arrested without incident. When Sgt. Cox returned to the police car he questioned Ms. Morgan about the slap. He said she then indicated that appellant did slap her but she was afraid to tell the police at first. On cross-examination, Sgt. Cox admitted that he did not see a gun that evening. He explained that the police responded as if there were a gun involved due to the dispatch indicating the possibility of a gun being used. Sgt. Cox testified that he did not observe physical evidence on Ms. Morgan's face or body to indicate that she was injured. However, he testified that she had stated at the scene that she was fearful of her life and that appellant threatened to kill her and bury her so far beneath the ground that no one would find her. Sgt. Cox stated that while at the scene, Ms. Morgan indicated to him that she wanted to sign the complaint and she wanted appellant under arrest. After he arrested appellant, Sgt. Cox read appellant his Miranda rights. He stated that at the police station that night Ms. Morgan provided only a partial written statement and did not sign the domestic violence complaint. She told him that she did not want to sign the complaint because she was fearful of what may happen in the future. Sgt. Cox stated that his observations that night led him to believe that Ms. Morgan did not want to sign the complaint due to her fear. He said that judging from her statements that night and her physical state of being upset and fearful, in his opinion, she appeared to believe that appellant was going to -5- carry out his threat of killing her and burying her so far beneath the ground that no one would find her remains. Sgt. Cox determined that appellant was the aggressor due to appellant's own statement that he slapped her across the face. On redirect examination, Sgt. Cox testified that Ms. Morgan made the partial written statement at the police station. On re-cross examination, Sgt. Cox indicated that Ms. Morgan handed the partial written statement to him. The prosecution rested. The court recessed and reserved ruling on the admission of the exhibits offered. Because the defense objected to the introduction of a copy, the court granted the prosecution time to obtain the original statement offered into evidence as Exhibit 1. Appellant testified on his own behalf. He stated that the police failed to read him his Miranda rights. He testified that the dispatcher never asked him about a gun. Defense rested. The city recalled Officer Cox on rebuttal. Sgt. Cox stated that when he asked appellant whether there was any violence towards him from his wife during the incident, appellant said no, but, appellant admitted [he] did slap her. Sgt. Cox said it was at that point that appellant was placed under arrest. Sgt. Cox stated that he, personally, advised appellant of his Miranda rights after appellant was handcuffed and brought out to the police car. Once appellant was read his rights, he was asked no further questions and he did not talk any further to the police. On cross- examination, Sgt. Cox conceded that he did not require appellant to sign a document stating his Miranda rights had been read. Sgt. Cox -6- said that appellant had advised the dispatch that he did not have a weapon. Moreover, Sgt. Cox testified that he believed that appellant did not use a gun towards the victim in any way. Cox said that once appellant was in custody, the police asked Ms. Morgan for consent to search for a weapon, not as evidence but for everyone's safety; however, she denied the request. On re-direct examination, Sgt. Cox testified that a copy of the tape recording containing the discussions with the dispatchers was made. The tape includes the initial phone conversation with the victim and dispatch; the dispatch to the scene; the conversations between Sgt. Cox and dispatch; and, appellant's conversation with dispatch until he walks out of the house and hangs up. On re-cross, Cox verified that the tape offered as Exhibit 2 is a copy made from the original tape. Thereupon, the 911 tape was played for the court. On re-cross examination, Sgt. Cox conceded that appellant had repeated two to three times that he did not have a gun. State's Exhibit 2, the 911 taped conversations to the extent that the conversations related to discussions regarding the gun, was admitted without objection. State's Exhibit 1 was not admitted into evidence as hearsay. The court overruled appellant's renewed motion for acquittal pursuant Crim.R. 29. Closing arguments were waived. The court found appellant guilty of the offense of domestic violence. On September 22, 1997, appellant was sentenced to a term of one hundred days in jail with ninety-five days suspended, fined $1,000 with $250 suspended, and ordered to serve two years active -7- probation conditioned upon several terms, including completion of an anger-management/batterer treatment program and the relinquishment of any and all weapons and firearms to the North Olmsted Police Department no later than September 24, 1997. Stay of execution of sentence was granted upon appellant's posting of an appeal bond. Appellant timely appeals and advances five assignments of error for our review. I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S RULE 29 MOTION FOR ACQUITTAL AT THE CONCLUSION OF THE STATE[']S EVIDENCE. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN FINDING THE APPELLANT GUILTY OF DOMESTIC VIOLENCE WHEN AN ESSENTIAL ELEMENT OF THE CRIME IS MISSING. III. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT CONSIDERED STATEMENTS IN EXHIBIT 1 IN ITS VERDICT, WHICH EXHIBIT WAS DISALLOWED INTO EVIDENCE. V. THE TRIAL COURT COMMITTED ERROR WHEN IT CONFISCATED APPELLANT'S GUN. In his first and second assigned errors, appellant argues that the evidence was insufficient to prove an essential element of the offense against him. Specifically, appellant contends the trial court erred when it denied his motion for acquittal pursuant to Crim.R. 29; moreover, the trial court erred in finding him guilty of domestic violence asserting that no evidence was presented to show that appellant caused physical harm to his wife. -8- A motion for acquittal is governed by Crim.R. 29(A), which states in pertinent part: The court on a 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 of one or more offenses in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. Pursuant to Crim.R. 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 proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. It is well established that 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 rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. We review the charge of domestic violence pursuant to R.C. 2919.25(A). The elements of the charge are as follows: No person shall knowingly cause or attempt to cause physical harm to a family or household member. -9- The record reveals that the complaint charging appellant states inter alia: to wit: struck her about the right side of the face and threatened to kill her, being a family member (wife) Dee Morgan ***. Appellant, in reliance on City of Hamilton v. Cameron,contends that there was no evidence to show that he caused physical harm to his wife and his conviction must be reversed. We find appellant's reliance on Cameron to be misplaced. In Cameron, the court concluded that there was no evidence presented to show that the appellant knowingly attempted to carry out the threat. The Cameron court stated [w]hile it is true that victims may change their testimony to protect a spouse, there must be some evidence that a victim either stated, or from other evidence it could be inferred, that the victim thought the accused would cause imminent physical harm. The defendant was charged with domestic violence because he threatened to shoot his wife. In the matter sub judice, although appellant argues that both he and his wife denied that appellant slapped his wife, the testimony at trial of Sgt. Cox indicates that on the night of the incident appellant admitted that he slapped his wife across the face and Ms. Morgan, at the scene, told Sgt. Cox that appellant both slapped and threatened her during the dispute. Sgt. Cox, who was on the scene, believed that Ms. Morgan was, in fact, fearful as a result of the threats which she described to him that night. After viewing the evidence presented at trial, including the testimony of Sgt. Cox in a light most favorable to the prosecution, we find this evidence, if believed, could convince an average mind -10- beyond a reasonable doubt that appellant caused or attempted to cause physical harm to his wife. Accordingly, we find appellant's first and second assignments of error to be without merit. Appellant's third and fourth assignments of error having a common basis in law and fact shall be considered together. In his third assignment of error, appellant contends that the decision of the trial court is against the manifest weight of the evidence presented. In his fourth assignment of error, appellant contends that the trial court erred when it considered the statements contained in Exhibit 1 in its verdict. Specifically, appellant contends that without the statements of the victim as put forth in Exhibit 1, which was disallowed as hearsay, the weight of the evidence and all reasonable inferences drawn therefrom do not support the conclusion that appellant caused physical harm to his wife, which is an essential element of the charge against him. In determining whether the verdict is against the manifest weight of the evidence, 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 finder of fact clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Davis. Moreover, the weight of the evidence and the 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 record reveals that the trial court found the testimony of -11- Sgt. Cox to be totally credible, including the admission of appellant made to Sgt. Cox with regard to his slapping his wife. Consequently, after reviewing the entire record, weighing all the evidence and the reasonable inferences therefrom, and considering the credibility of the witnesses, we find the decision of the trial court to be supported by the weight of the evidence, even without consideration of the hearsay statement of appellant's wife, which was not admitted into evidence. Accordingly, we conclude that the trial court did not lose its way and create such a manifest miscarriage of justice in resolving the conflicts in the evidence as to warrant a reversal of appellant's conviction. Appellant's third and fourth assignments are without merit. Finally, in his fifth assignment of error, appellant complains that the trial court erred when it confiscated appellant's gun. Specifically, appellant contends that the evidence clearly indicates that no gun was used in commission of the crime of domestic violence as charged and that the confiscation of his gun violates his rights as found in the Second Amendment of the Constitution which states that *** the right of the people to keep and bear arms, shall not be infringed. R.C. 2951.02(C)(1)(a) governs the conditions of probation that the court may impose upon the offender convicted of a misdemeanor, stating inter alia *** [i]n the interests of doing justice, rehabilitating the offender, and ensuring the offender's good behavior, the court may impose additional requirements on the offender ***. However, we recognize that such restrictions cannot -12- be so overly broad so as to impinge upon the person's liberty. State v. Maynard (1988), 47 Ohio App.3d 76, 77. The court in State v. Livingston (1976), 53 Ohio App.2d 195, articulated the test for determining whether a condition of probation is unreasonable stated at 197: A condition of probation which (1) has no relationship to the crime of which the offender was convicted, (2) relates to the conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to the future criminality or does not serve the statutory ends of probation is invalid. We note that a condition of probation requiring the surrender of firearms is not unlawful. In State v. Kleimeier (1994), Montgomery App. No. 13926, unreported, the court stated: It is a well established principle that there is no absolute constitutional right of an individual to possess a firearm. State v. Winkelman (1981), 2 Ohio App.3d 465, 442, 442 N.E.2d 811. This case also held that a statute which prohibits a person from having a firearm while under disability is constitutional. The public policy behind the statute is essentially the same as the public policy behind the condition of probation at issue before us. We fail to see how the condition of probation violates the defendant's constitutional right to bear arms. In light of the court's broad discretion in implementing additional conditions of probation in the interests of doing justice, rehabilitating the offender and ensuring the offender's good behavior, we do not find that the trial court abused its discretion in requiring appellant to relinquish his gun during his period of probation after his conviction for domestic violence. -13- Accordingly, we find appellant's fifth assignment of error to be without merit. Judgment affirmed. 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 Rocky River 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. TIMOTHY E. McMONAGLE JUDGE KARPINSKI, P.J. and PATTON, J., CONCUR. 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 .