State v. Almeyda

2021 Ohio 451
CourtOhio Court of Appeals
DecidedFebruary 19, 2021
Docket28734
StatusPublished
Cited by1 cases

This text of 2021 Ohio 451 (State v. Almeyda) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Almeyda, 2021 Ohio 451 (Ohio Ct. App. 2021).

Opinion

[Cite as State v. Almeyda, 2021-Ohio-451.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28734 : v. : Trial Court Case No. 2019-CRB-1040 : DANIEL J. ALMEYDA : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 19th day of February, 2021.

JOHN D. EVERETT, Atty. Reg. No. 0069911, City of Kettering Prosecutor’s Office, Appellate Division, 2325 Wilmington Pike, Kettering, Ohio 45420 Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant

.............

HALL, J. -2-

{¶ 1} Daniel J. Almeyda appeals from his conviction for violating a protection order.

We affirm.

I. Factual and Procedural Background

{¶ 2} On June 5, 2019, Almeyda was charged in Kettering Municipal Court with

violation of a protection order under R.C. 2919.27(A)(1). The case was tried to a jury,

which was presented with the following evidence.

{¶ 3} Aubrey Groh testified that she had lived with Almeyda for 20 years and that

they have three children together. On May 23, 2019, an order protecting Groh and the

children was entered against Almeyda that, among other things, required him to stay 500

feet away from them. On June 4, 2019, Groh was driving to work when she noticed

Almeyda pull in behind her in his Honda Odyssey van. He began to follow her. Groh

stopped at a red light. Almeyda stopped behind her, backed up, and pulled into a church

parking lot on the comer. The light turned green, and Groh turned left. Almeyda pulled out

of the parking lot and onto the street, following Groh. He continued to follow her for a way.

Groh was able to use her cell phone to snap a picture of him behind her. Groh testified

that Almeyda got within 25 feet of her while she was in her car. She said that she could

tell it was him driving because he had a look on his face that she had seen before in their

20-year relationship.

{¶ 4} After the close of the state’s evidence, Almeyda moved for acquittal under

Crim.R. 29. The trial court overruled the motion. Almeyda then took the stand and made

a statement to the jury in which he said that it was not him in Groh’s pictures.

{¶ 5} The jury found Almeyda guilty. The trial court sentenced him to 180 days in -3-

jail plus a $250 fine. The court suspended 165 days of the jail term and placed Almeyda

on probation for two years.

{¶ 6} Almeyda appeals.

II. Analysis

{¶ 7} Almeyda presents two assignments of error:

THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE

EVERY ESSENTIAL ELEMENT OF VIOLATION OF A PROTECTION

ORDER BEYOND A REASONABLE DOUBT.

MR. ALMEYDA’S CONVICTION FOR VIOLATION OF A

PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶ 8} Sufficiency of the evidence and the manifest weight of the evidence are

different legal concepts. See State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046,

837 N.E.2d 315, ¶ 69. But “manifest weight may subsume sufficiency in conducting the

analysis; that is, a finding that a conviction is supported by the manifest weight of the

evidence necessarily includes a finding of sufficiency.” (Citation omitted.) State v.

McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. As a result, “a

determination that a conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency.” (Citations omitted.) State v. Braxton, 10th Dist.

Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

{¶ 9} “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 -4-

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.’ ”

State v. Hunt, 2d Dist. Greene No. 2013-CA-79, 2014-Ohio-3839, ¶ 14, quoting State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 10} “The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve.” State v. Hammad, 2d Dist. Montgomery No.

26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967). 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,

*4 (Aug. 22, 1997). “This court will not substitute its judgment for that of the trier of facts

on the issue of witness credibility unless it is patently apparent that the factfinder lost its

way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL

691510, *4 (Oct. 24, 1997).

{¶ 11} R.C. 2919.27(A)(1) provides that no “person shall recklessly violate the

terms” of a protection order issued “pursuant to section 2919.26 or 3113.31 of the Revised

Code.” R.C. 2901.22(C) states that “[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.” -5-

{¶ 12} The protection order that Almeyda was accused of violating required him to

stay 500 feet away from Groh, even while driving:

RESPONDENT SHALL STAY AWAY FROM PETITIONER and all other

protected persons named in this order, and shall not be present within 500

feet * * * (distance) of any protected persons wherever those protected

persons may be found, or any place the Respondent knows or should know

the protected persons are likely to be, even with Petitioner’s permission.

If Respondent accidentally comes in contact with protected persons in any

public or private place, Respondent must depart immediately. This Order

includes encounters on public and private roads, highways, and

thoroughfares.

(Emphasis sic.) It is undisputed that Almeyda was properly served with the protection

order and that the order was in effect at the time that he allegedly violated it.

{¶ 13} The complaint charged Almeyda with driving behind Groh within 500 feet.

Groh estimated that Almeyda got to “less than twenty-five feet” from her. (Tr. 19). At any

rate, she said, “it was definitely less than five hundred feet away from me.” (Id.) Two

pictures that Groh took of Almeyda following her were presented at the trial. Based on

those pictures, we believe that it was reasonable for the trial court to find that Almeyda

had indeed been within 500 feet.

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