Bedford Hts. v. Smith

2022 Ohio 3036

Opinion

[Cite as Bedford Hts. v. Smith, 2022-Ohio-3036.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF BEDFORD HEIGHTS, :

Plaintiff-Appellee, : No. 111067 v. :

JOSHUA W. SMITH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: September 1, 2022

Criminal Appeal from the Bedford Municipal Court Case No. 20CRB00166

Appearances:

Ross Cirincione, Prosecutor, City of Bedford Heights, and Marlene Ridenour, Assistant Prosecutor, for appellee.

Russell S. Bensing, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Joshua Smith (“Smith”), appeals a judgment of

the Bedford Municipal Court finding him guilty of one count of domestic violence.

He claims the following error: The trial court erred in entering a judgment of conviction which was against the manifest weight of the evidence, in violation of the defendant’s constitutional right to due process of law.

We find that Smith’s conviction is supported by competent, credible

evidence and affirm the trial court’s judgment.

I. Facts and Procedural History

Smith was charged in the Bedford Municipal Court with one count of

domestic violence in violation of R.C. 2919.25(A). The charge was filed after his

then-wife, Lynda Amba (“Amba”), reported to police that Smith physically assaulted

her on the morning of December 10, 2019.

Amba testified at a bench trial that, at approximately 6:30 a.m. on

December 10, 2019, Smith barged into the bedroom where she was sleeping, jumped

on the bed, and choked her. (Tr. 11.) Amba, who was surprised by the disturbance,

“was gasping for air because [she] couldn’t breathe.” (Tr. 9.) She stated that Smith

was “screaming profanity” and telling her to “get out, get out.” (Tr. 11.) She further

stated that Smith dragged her by her feet and kicked her and some of her belongings

into the hallway of their apartment building. (Tr. 11.)

Amba ran to an upstairs apartment to call the police because she did

not have her cellphone. (Tr. 17.) Amba identified her voice on the recording of the

911 call, which was played for the court but was not admitted into the record. (Tr.

14, 52.) According to Amba, the police took photographs of her injuries when they

arrived on the scene a short while later. (Tr. 19.) Officer Javon Jackson (“Officer Jackson”), of the Bedford Heights

Police Department, responded to the scene of the domestic dispute. According to

Officer Jackson, Amba was “very emotional” and “upset” when he arrived. He also

stated that he observed an injury on Amba’s right elbow and hand marks on her

neck. He testified, in relevant part:

Q: Did you observe any injuries on Ms. Amba when you looked at her?

A: Yes, I did. I observed an injury on her right elbow.

Q: Did the injury appear to be fresh?

A: Yes.

* * *

Q: * * * [Y]ou said something about she indicated she had been choked around the neck?

Q: Did you observe any injury to that area of her body?

Q: What did you see?

A: Just a little fresh ─ looked like fresh marks of a print around her neck.

Q: Like a palm?

A: Yeah, a handprint, fingerprints.

Q: Okay. But you do remember seeing a couple of injuries on her? A: Yes, ma’am.1

(Tr. 45.)

Amba and Smith lived with another individual, Ricky Darnell Harris,

Jr. (“Harris”), who was a friend of Smith. (Tr. 11.) Harris, who was sleeping in the

apartment at the time of the incident, testified that he did not hear any screaming

or yelling. (Tr. 55.) Harris, who often wears headphones, testified that he was not

wearing them at the time of the incident. He confirmed that the police responded

to the scene and that they entered the apartment, but they did not ask him any

questions about the incident. He testified:

Q: Did the police question you at all about whether or not you saw anything or heard anything?

A: Not at all.

(Tr. 56.) When asked on cross-examination why Harris did not volunteer any

information to help his friend, Smith, Harris replied, “None of the officers asked me

any questions.” (Tr. 58.)

Smith testified in his own defense. He explained that he and Amba

were having marital problems and that, on the morning of December 10, 2019, he

decided to look through her phone “to see what the issue was.” (Tr. 63.) Upon

searching Amba’s phone and Apple watch, he discovered text messages from

another man named Timothy Johnson (“Johnson”). (Tr. 63.) In one text, Johnson

1 Officer Jackson testified that photographs were taken of Amba’s injuries, but he could not remember who took the photographs. Although he discussed the photographs during his direct testimony, the photographs were not admitted into evidence. (Tr. 45, 52.) asked, “Are you finally getting a divorce?” In later texts, he stated, “I love you, I miss

you sleeping in my bed,” and “I wish you were here.” According to Smith, Amba

replied to Johnson’s texts, stating, “I love you, too.” (Tr. 63.)

When asked how the discovery of the text messages made Smith feel,

he stated that he was “disappointed” but denied becoming “enraged.” (Tr. 63.) But

immediately after reading the texts, Smith woke Amba up and confronted her. He

explained:

Well, after I read that, I woke her up and I handed her her Apple watch and her phone, and I said, You love him, right? And you need to get out. All your stuff will be in the hallway.

So I walked to the front of the room, I grabbed all her belongings, as far as coat, purse, and things, and I threw it in the hallway.

And when I came back in the room, she was like, What are you talking about? And I said, I seen the message. I’m not stupid. You need to go. You need to get out of my house.

And I ─ when she went out * * * to grab her purse and stuff, I shut the door.

(Tr. 64.)

On cross-examination, Smith denied he was jealous about his wife

having an affair with another man. (Tr. 72.) He stated, “I was not jealous at all. If

you are with another person, then you should be with that person and not with me.”

(Tr. 72.) Smith also denied that he was screaming during the incident. (Tr. 74.)

Finally, Smith admitted that Harris accused Amba of stealing his PlayStation game

system. (Tr. 75.) After hearing the evidence and the parties’ closing arguments, the

court found Smith guilty of one count of domestic violence in violation of R.C.

2929.25(A). The court sentenced him to a $500 fine, a 180-day suspended jail

sentence, and one year of active probation. The court also issued a no-contact order

prohibiting Smith from contacting Amba. Smith now appeals his conviction.

II. Law and Analysis

In the sole assignment of error, Smith argues his domestic violence

conviction is against the manifest weight of the evidence. He contends that Amba’s

account of the domestic incident lacked credibility and that we should not defer to

the trier of fact’s determinations of credibility. He asserts that by deferring to the

trier of fact, we subvert the manifest weight of the evidence standard of review and

equate it with the standard applied to a sufficiency-of-the evidence review.

“The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins,

78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus.

Sufficiency is a test of adequacy and requires a determination of whether the

prosecution met its burden of production at trial. Id. at 386; State v. Bowden, 8th

Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. In judging the sufficiency of evidence, we view the evidence in the light

most favorable to the government without regard to credibility. Id. at 266, citing

Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

In contrast to sufficiency, a review of the manifest weight of the

evidence questions the credibility of the evidence presented and assesses whether

the state met its burden of persuasion at trial. Thompkins at 387. In a manifest

weight challenge, the reviewing court must examine the entire record, weigh the

evidence and all the reasonable inferences, consider the witnesses’ 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. Id., citing State v. Martin, 20 Ohio App.3d 172,

485 N.E.2d 717 (1st Dist.1983).

When reversing on a case of manifest weight, the Ohio Supreme Court

has held that an appellate court “sits as a ‘thirteenth juror’ and disagrees with the

factfinder’s resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v.

Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The Supreme Court’s

characterization of the appellate court as a “thirteenth juror” refers to the appellate

court’s “‘discretionary power to grant a new trial.’” Id. at 547, quoting Martin at 175.

As a “thirteenth juror,” the appellate court may disagree with the factfinder’s

resolution of the conflicting evidence and, in effect, create a deadlocked jury, which

requires a new trial. Although we sit as a “thirteenth juror,” we nevertheless give “great

deference” to the trier of fact. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,

865 N.E.2d 1264, ¶ 26 (“Thompkins instruct[s] that the fact-finder should be

afforded great deference.”). Unlike a sufficiency analysis, where credibility is not at

issue, we assess the witnesses’ credibility in reviewing a challenge to the manifest-

weight of the evidence, but we may only grant a new trial when it is clear that “‘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.’” Thompkins at 547, quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We may

not merely substitute our judgment for that of the jury. “‘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.’” Id., quoting Martin at 175.

In State v. Marshall, 8th Dist. Cuyahoga No. 109633, 2021-Ohio-

4434, we rejected the appellant’s argument that we should afford the jury less

deference when reviewing a manifest-weight-of-the evidence challenge. Id. at ¶ 31.

We explained that the trier-of-fact is uniquely positioned to view the witnesses’

demeanor, gestures, facial expressions, and voice inflections. Id. These outward

behaviors are not evident in a written transcript. Demeanor is not what the witness

says, but the manner in which he or she says it. Demeanor evidence is invaluable in

assessing a witness’s credibility, yet it is totally lost in transmission to the court of

appeals. “Because the trier of fact sees and hears the witnesses and is particularly

competent to decide ‘whether, and to what extent, to credit the testimony of particular witnesses,’ we must afford substantial deference to its determinations of

credibility.” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d

1047, ¶ 20,2 quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 Ohio

App. LEXIS 3709, 4 (Aug. 22, 1997). See also State v. Marshall, 8th Dist. Cuyahoga

No. 109633, 2021-Ohio-4434, ¶ 31. So, again, “‘[a]lthough we have the discretionary

power of a ‘thirteenth juror’ to grant a new trial, that power should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction.’”

Marshall at ¶ 31, quoting State v. Hester, 8th Dist. Cuyahoga No. 108207, 2019-

Ohio-5341, ¶ 22.

Smith was convicted of one count of domestic violence in violation of

R.C. 2919.25(A). R.C. 2919.25(A) provides that “[n]o person shall knowingly cause

or attempt to cause physical harm to a family or household member.” As previously

stated, Smith contends his domestic violence conviction is not based on credible

evidence.

Smith first argues that Amba’s testimony that she was yelling in the

bedroom while Smith was assaulting her is not credible because Smith and Amba’s

roommate, Harris, testified that he did not hear any yelling. Harris testified that the

walls of the apartment were thin and he would have heard if they were arguing in

the other bedroom. However, just because Harris’s testimony conflicts with Amba’s

2 In Barberton, the Ohio Supreme Court held that a police officer’s unaided visual estimation of a vehicle’s speed is sufficient to support a conviction for speeding. After determining that the officer’s testimony provided sufficient evidence to support the conviction, the court stated that that officer’s credibility nevertheless remained an issue for the trier of fact. Barberton at ¶ 20. does not mean that Amba’s testimony is not credible. To the contrary, the evidence

showed that Harris was biased in favor of Smith because they were friends. There

was also evidence that Harris was angry with Amba because he believed she stole

his PlayStation game system. Therefore, the record does not support Smith’s

argument that we should afford Harris’s testimony more credibility than Amba’s.

Smith next argues that Amba’s testimony regarding her injuries is not

credible because the police report indicated that Amba’s only injury was something

she did not mention, a small scrape to her right elbow. However, Officer Jackson

clearly and unequivocally testified that he observed what appeared to be a fresh

injury on her right elbow. He also testified that he observed a handprint on her neck.

This testimony corroborates Amba’s testimony that she sustained an injury to her

elbow and that Smith choked her during the altercation. Furthermore, Amba’s trial

testimony was remarkably consistent with the written statement she provided to

police more than a year earlier.

Finally, Smith argues that Amba’s explanation as to what started the

dispute was not credible. She testified that Smith was angered when he saw a text

message between Amba and her sister in which Amba described seeing Smith

talking to another woman. Smith contends this explanation is not logical and,

therefore, lacks credibility.

It is not clear why Amba provided this explanation, but it does not

matter. Smith explained that he was angered when he saw a text exchange between

Amba, his then-wife, and another man, which indicated that Amba was having an affair with another man. What is not credible, however, was Smith’s testimony that

he was not jealous of the affair.

The verdict in this case is based solely on witness testimony, and the

trial court believed Amba’s testimony over Smith’s and Harris’s. But, as previously

stated, the evidence showed that Harris had reasons to be biased in favor of Smith,

his friend. Smith also had reason to lie to the court to avoid a guilty verdict. And,

Amba’s testimony was corroborated by the testimony of an unbiased, third-party

witness, Officer Jackson. Her testimony was also consistent with the written report

she provided to police regarding the incident more than a year earlier. In weighing

the evidence and the witnesses’ credibility, we cannot say that the trier of fact clearly

lost its way and created such a miscarriage of justice that Smith’s conviction must

be reversed and a new trial ordered.

Accordingly, the sole assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from 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

Bedford Municipal Court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending 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.

EILEEN T. GALLAGHER, JUDGE

LISA B. FORBES, P.J., CONCURS; EMANUELLA D. GROVES, J., CONCURS IN JUDGMENT ONLY