[Cite as State v. Barr, 2010-Ohio-1258.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-09-40
v.
NICOLE BARR, OPINION
DEFENDANT-APPELLANT.
Appeal from Marysville Municipal Court Trial Court No. CRB 0900829
Judgment Affirmed
Date of Decision: March 29, 2010
APPEARANCES:
Alison Boggs for Appellant
Victoria Stone Moledor for Appellee Case No. 14-09-40
SHAW, J.
{¶1} Defendant-Appellant Nicole R. Barr (“Barr”) appeals the September
30, 2009 Judgment Entry of the Marysville Municipal Court finding her guilty of
domestic violence in violation of R.C. 2919.25(A).
{¶2} This appeal arises out of the following set of circumstances. On July
19, 2009, at 1:35 a.m., two Union County Sheriff’s Deputies, Deputy Phipps and
Deputy Underwood, responded to a 9-1-1 call reporting a domestic altercation.
Upon arriving to the scene, the Deputies completed a short investigation which
revealed that the participants in the dispute were Barr and her longtime boyfriend,
Ronald Little (“Little”). The argument between Barr and Little was sparked by the
presence of a pet rabbit cage in the kitchen. Little wanted the animal to remain
outside, while Barr insisted that the animal be kept in the garage.
{¶3} The disagreement escalated into a physical altercation which ended
with Little receiving scratches across his chest as well as on the right side and the
back of his neck. Deputy Phipps testified that Barr admitted, at the scene, to
grabbing Little by the neck. However, she remained silent when asked about the
cause of the abrasions on Little’s chest. Barr was subsequently arrested and
charged with domestic violence in violation of R.C. 2919.25(A) which states:
“[n]o person shall knowingly cause or attempt to cause physical harm to a family
or household member.”
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{¶4} Barr retained counsel and the cause was set for a bench trial on
September 21, 2009. On August 24, 2009, Barr’s attorney, Mr. Gunner, filed a
demand for a jury trial with the court. However, a week prior to the trial, Mr.
Gunner signed and filed a waiver of a jury trial on behalf of Barr. The same week,
Mr. Gunner also filed a motion to withdraw as Barr’s counsel citing that Barr “did
not honor her contract of employment” as the reason for requesting permission to
withdrawal.
{¶5} On September 21, 2009, Barr appeared in court pro se. The trial
court discussed the jury trial waiver filed by Mr. Gunner. The court then asked
Barr if she still wanted to waive her right to a jury trial. Barr responded by stating
“yes.” The court then read the relevant language from the waiver of trial by jury
form in open court and told Barr that she needed to sign the form in order for it to
take effect. Barr subsequently signed the form. The court also approved Mr.
Gunner’s motion to withdrawal and then appointed Barr new counsel to further
represent her in the matter. A bench trial was reset for September 30, 2009.
{¶6} Barr appeared in court for the trial represented by her new counsel.
The prosecution offered the testimonies of Deputy Phipps and Deputy Underwood
in support of its case. Barr testified as the sole witness on her behalf. At the close
of the evidence, the trial court found Barr guilty stating that the evidence
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supported beyond a reasonable doubt that Barr knowingly attempted to cause
physical harm to a family or household member.
{¶7} Barr now appeals to this Court, asserting four assignments of error.
ASSIGNMENT OF ERROR NO. 1 THERE WAS INSUFFICIENT EVIDENCE FOR THE TRIAL COURT TO FIND [APPELLANT] GUILTY OF DOMESTIC VIOLENCE
ASSIGNMENT OF ERROR NO. II THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT’S CRIMINAL RULE 29 MOTION REGARDING THE LACK OF EVIDENCE
ASSIGNMENT OF ERROR NO. IV APPELLANT WAS DEPRIVED HER CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AFTER PROPERLY FILING A JURY DEMAND
{¶8} For ease of discussion, we elect to discuss Barr’s assignments of
error out of order.
The Fourth Assignment of Error
{¶9} In her fourth assignment of error, Barr asserts that she was denied
her constitutional right to a trial by jury. Specifically, Barr argues that her waiver
of a jury trial did not comply with the statutory requirements set forth in R.C.
2945.05 and that she did not knowingly and voluntarily make the waiver.
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{¶10} Initially, we acknowledge that Barr, via her counsel, Mr. Gunner,
properly demanded a jury trial pursuant to Crim. R. 23(A).1 However, the record
indicates that Mr. Gunner subsequently filed a waiver of jury trial which Barr later
affirmed in open court at a pre-trial hearing. R.C. 2945.05 governs a defendant’s
waiver of a jury trial and states, in its entirety:
In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: “I __________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.”
Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial.
The Supreme Court of Ohio has construed R.C. 2945.05 to require five conditions
to be met in order for a waiver to be validly imposed. The waiver must be (1) in
writing, (2) signed by the defendant, (3) filed, (4) made part of the record, and (5)
1 Crim R. 23(A) states, in relevant part: In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.
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made in open court. See State v. Lomax, 114 Ohio St.3d 350, 353, 2007-Ohio-
4277, 872 N.E. 2d 279.
{¶11} On September 21, 2009, the following dialogue transpired between
the trial court and Barr at a hearing in open court:
PROSECUTION: * * *Your Honor, I’m not certain what the status is of the—there was a jury demand, your Honor. I’m not sure what the status of that—
THE COURT: The jury demand was withdrawn, I believe. Let me look here.
PROSECUTION: Your Honor, is there a jury waiver in the court’s file?
THE COURT: That’s what I’m looking for. Yes. There is a waiver of trial by jury filed September the 16th. It was signed by Mr. Gunner. Is that what you want to do this morning—Ms. Barr? Do you want to give up your right to a trial by jury?
BARR: Yes.
THE COURT: [Bailiff], would you give me one of those forms. I’m going to have you sign a waiver of trial by jury this morning, Ms. Barr. And what this says is, I the undersigned defendant charged with one or more misdemeanor criminal and/or traffic offense, and having been—been advised of my right to have a trial by jury of eight person in this matter, do hereby knowingly, voluntarily—and voluntarily waive my right to such jury trial and consent to submit my case to the court without a jury. No promises or threats have induced me to waive this right. I wish this case to be heard at 8:30 a.m. It says on the date previously set for trial. But I’ll need to have you sign off on that where I’ve placed the X, Ms. Barr. Your attorney has already entered a waiver of trial by jury in this case. And I’m going to allow Mr. Gunner to withdraw as you attorney.
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{¶12} While Barr concedes that she signed a written waiver in open court,
she contends that the waiver was invalid because it was not filed and made part of
the record. In State v. Pless, the Supreme Court of Ohio held that a trial court
must strictly comply with the requirements set forth in R.C. 2945.05. State v.
Pless, 74 Ohio St.3d 333, 337, 1996-Ohio-102, 658 N.E.2d 766. The Court
further held that the statutory requirement that a jury waiver form be “filed in said
cause and made part of the record thereof” means that the form must be time-
stamped and included in the record. State v. Thomas, 97 Ohio St.3d 309, 314,
2002-Ohio-6624, 779 N.E.2d 1017.
{¶13} However, as noted by the Thomas Court, a trial court has been held
to have retained jurisdiction to hold a bench trial where a jury waiver was
physically located in the case file but had not been file-stamped. Thomas, 97 Ohio
St.3d at 314 citing State v. Otte, 94 Ohio St.3d 167, 169, 2002-Ohio-343, 761
N.E.2d 34.
{¶14} In State v. Otte, the Court held that no Pless issue arose where there
was evidence in the record that the signed waiver was included in the court’s case
file even though the waiver appeared to lack a contemporaneous file stamp. Otte,
94 Ohio St.3d at 169 citing State ex rel. Larkins v. Baker, 73 Ohio St.3d 658, 661,
1995-Ohio-144, 653 N.E.2d 701 (where the signed waiver was placed in the file
but lacked a file-stamp, the court held that the trial court’s failure to file-stamp the
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waiver was not a jurisdictional defect). In Otte, the defendant signed the written
waiver in open court. The waiver was then physically placed in the trial court’s
case file but did not receive a contemporaneous file-stamp. The Otte Court held
that the lack of a file-stamp on the waiver did not divest the trial court jurisdiction
to hold a bench trial because there was other evidence that the waiver was
included in the trial court’s case file. Specifically, the Otte Court was persuaded
by the certification of the clerk of courts that the original waiver was physically
included in the file.
{¶15} The facts of the instant case are identical to those in Otte and
Larkins, supra. The original waiver of jury trial signed by Barr was physically
placed in the trial court’s case file but does not bear a contemporaneous file-stamp.
Moreover, as in Otte, there is evidence before us that Barr’s signed waiver was
included in the trial court’s case file. The Clerk for the Marysville Municipal
Court prepared and submitted a certified “List of Documents Comprising Record”
which identifies and enumerates Barr’s signed waiver as document “34.
Defendant’s waiver of jury trial signed by defendant.” The List of Documents
bears the appropriate case caption and the corresponding case number which
appears on the trial court’s case file, 09 CRB 00829. In addition, the document
also evinces the following certification:
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I hereby certify that the above List of Documents Comprising the Record is, to the best of my knowledge and belief, an accurate summary of the documents in the case file.
Charles E. Crowley Clerk, Marysville Municipal Court /s/
{¶16} Based on the foregoing authority of Otte and Larkins, we cannot say
that the lack of a contemporaneous file-stamp on Barr’s signed waiver divested the
trial court jurisdiction to conduct a bench trial when the record indicates that
waiver was physically included in the trial court’s case file. Thus, the record
provides sufficient evidence that Barr signed a written waiver in open court which
was filed and made part of the record thereof. Therefore, based on the record
before us, the trial court complied with the statutory requisites set forth in R.C.
2945.05 and as such it was appropriate for the court to proceed with a bench trial
to adjudicate Barr’s case.
{¶17} Alternatively, Barr also asserts that the waiver was ineffective
because she did not knowingly or voluntarily sign the waiver. As the basis for this
contention, Barr argues that she was unrepresented when she made the waiver and
thus, did not have an adequate opportunity to confer with counsel immediately
prior to making the waiver. The Supreme Court of Ohio has held that strict
compliance with R.C. 2945.05 “is accomplished by establishing that a pro se
defendant has an opportunity to consult with counsel at any time prior to waiving
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her right to a jury trial.” State v. Reese, 106 Ohio St.3d 65, 2005-Ohio-3806, 831
N.E.2d 983. Further, the Reese Court noted that “the reference to timing in the
statute required only that the waiver is made after arraignment and after the
opportunity to consult with counsel.” Reese, 106 Ohio St.3d at 67 (emphasis in
original).
{¶18} Our review of the record reveals that Barr was represented by
counsel, Mr. Gunner, for almost a month prior to her signing the jury waiver.
Moreover, Barr’s case was set for a bench trial for three weeks until she retained
Mr. Gunner to represent her. On August 24, 2009, Mr. Gunner signed and filed a
jury demand on Barr’s behalf. Three weeks later, Mr. Gunner filed a notice to
withdraw the jury demand which the trial court subsequently asked Barr to affirm
in open court. Moreover, the trial court appointed Barr new counsel at the hearing
where she made her waiver of a jury trial. Barr’s new counsel chose not to make
another jury demand despite the option of withdrawing the waiver and/or
renewing the demand at any time. Thus, the record demonstrates that Barr made
her waiver after ample opportunity to consult with counsel. As such, we find that
the record supports that Barr knowingly and voluntarily made her waiver of a jury
trial.
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The First, Second and Third Assignments of Error
{¶19} Initially, we note that the analysis required for Barr’s remaining
assignments is interrelated. As such, we elect to discuss the first, second and third
assignments of error together.
{¶20} In her remaining assignments of error Barr argues that the trial court
erred in overruling her Crim. R. 29(A) motion for acquittal. Specifically, Barr
asserts that there was insufficient evidence presented at trial to find her guilty of
domestic violence and that the trial court’s decision was against the manifest
weight of the evidence. Therefore, we must examine whether there was sufficient
evidence presented at trial for the court to have found Barr guilty of domestic
violence and based on the evidence presented we must determine whether the trial
court’s decision was against the manifest weight of the evidence.
{¶21} The Supreme Court of Ohio has set forth a test to determine whether
the evidence submitted in a trial was sufficient for the trier of fact to determine a
crime had been proven beyond a reasonable doubt. See State v. Jenks (1991), 61
Ohio St.3d 259, 574 N.E.2d 492. In Jenks, the Court outlined the sufficiency of the
evidence test as follows:
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 the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to
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the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus.
{¶22} In contrast, when reviewing whether the trial court’s judgment was
against the manifest weight of the evidence, the appellate court sits as a “thirteenth
juror” and examines the conflicting testimony. State v. Thompkins (1997), 78 Ohio
St.3d 380, 387, 678 N.E.2d 541. In doing so, this Court must review the entire
record, weigh the evidence and all reasonable inferences, consider the credibility
of witnesses, and determine whether “the [factfinder] 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. Adkins (Sept. 24, 1999), Hancock App. No. 5-
97-31, 1999 WL 797144, unreported, citing State v. Martin (1983), 20 Ohio
App.3d 172, 175, 485 N.E.2d 717; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541.
{¶23} In making this determination, the Supreme Court of Ohio has
outlined eight factors for consideration, which include “whether the evidence was
uncontradicted, whether a witness was impeached, what was not proved, that the
reviewing court is not required to accept the incredible as true, the certainty of the
evidence, the reliability of the evidence, whether a witness’ testimony is self-
serving, and whether the evidence is vague, uncertain, conflicting, or
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fragmentary.” State v. Apanovitch (1987), 33 Ohio St.3d 19, 23-24, 514 N.E.2d
394, citing State v. Mattison (1985), 23 Ohio App.3d 10, 490 N.E.2d 926,
syllabus. Ultimately, however, “[t]he discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
{¶24} In the present case, the trial court convicted Barr of domestic
violence under R.C. 2919.25(A), which provides in pertinent part:
(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. ... (F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
(1) “Family or household member” means any of the following: (a) Any of the following who is residing or has resided with the offender: (i) A spouse, a person living as a spouse, or a former spouse of the offender; ... (2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
{¶25} The burden is on the prosecution to establish beyond a reasonable
doubt both elements of the offense: that Barr caused or attempted to cause
physical harm to Little, and that Little was a family or household member.
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{¶26} It is undisputed by the parties that Barr and Little cohabitated within
the purview of the statute. Barr and Little maintained a long-term relationship of
several years. The couple resided together in the same household with their three
children. Therefore, Little clearly satisfies the requisite definition of being a
family or household member under the statute.
{¶27} However, Barr argues that the prosecution presented insufficient
evidence that she knowingly caused or attempted to cause physical harm to Little.
Physical harm includes “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.” R.C. 2901.01(A)(3). Further, under R.C.
2901.22(B), someone acts knowingly, “regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be of a
certain nature.” The accused does not have to commence a series of actions with
the intent to act knowingly: if he was aware that the result from his actions was
probable, then the person has acted knowingly. Id.; State v. Wenger (1979), 58
Ohio St.2d 336, 339, 390 N.E.2d 801. When a person acts knowingly, “[m]otive,
purpose, or mistake of fact is [of] no significance.” Wenger at 339, 390 N.E.2d
801.
{¶28} Here, there is sufficient evidence that Barr knowingly caused
physical harm to Little. At trial, the prosecution offered the testimony of the two
Deputies who responded to the initial 9-1-1 call. Deputy Phipps testified that upon
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arriving to the home that Barr and Little shared with their children, he noticed
abrasions across Little’s chest and neck. As part of his investigation, the Deputy
took Barr aside to inquire about what events had occurred prior to the arrival of
law enforcement. Deputy Phipps testified that Barr admitted to engaging in a
struggle with Mr. Little over the rabbit cage, and that Barr further admitted that
she grabbed Little by the neck causing the scratch marks. In addition, photographs
taken from the scene by Deputy Phipps were admitted into evidence which clearly
depicted scratches across Little’s neck and chest.
{¶29} Barr testified on her own behalf. She stated that her youngest son
brought the rabbit cage into the kitchen which sparked an argument with Little.
Barr further testified that when she saw Little begin to pick up the rabbit cage to
place it outside, she immediately grabbed the other end of the cage. A struggle
ensued between Barr and Little with each one holding onto the rabbit cage. Barr
testified that the rabbit cage caused the abrasions across Little’s mid-section, but
she denied causing the marks on Little’s neck.
{¶30} Clearly, there was evidence to support that Barr knowingly engaged
in the physical struggle with Little over the rabbit cage—the conduct which
resulted in Little receiving his injuries. Thus, a reasonable trier of fact could find
that Barr was aware that by engaging in a heated tug-of-war with a rabbit cage, she
was about to make some physical contact with Little, and that doing so would
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probably cause him physical harm. Accordingly, there was sufficient evidence for
the trial court to find that the essential elements of domestic violence were proven
beyond a reasonable doubt.
{¶31} Moreover, we cannot conclude that the trial court clearly lost its way
or created such a manifest miscarriage of justice that Barr’s conviction must be
reversed. Here, the trial court, as finder of fact, was best able to view the
witnesses and judge their credibility. Although Barr maintained at trial that she
did not cause injury to Little, there was no other evidence in the record to
contradict the testimony and physical evidence presented by the prosecution.
Furthermore, the trial court specifically stated at trial that Barr’s “credibility is
somewhat suspect.” Based on the foregoing, the conclusion that Barr caused
physical harm to Little was not against the manifest weight of the evidence.
{¶32} Accordingly, Barr’s first, second and third assignments of error are
also overruled. And for all these reasons, the Judgment of the Marysville
Municipal Court of is affirmed.
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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