[Cite as State v. Blackshear, 2013-Ohio-77.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2012-CA-84 CRAIG BLACKSHEAR : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2012CR0122
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 14, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO By: RONALD MARK CALDWELL DEREK LOWRY Stark County Prosecutor’s Office Crawford, Lowry & Associates 110 Central Plaza South, Ste. 510 116 Cleveland Avenue N.W. Canton, OH 44702 Suite 800 Canton, OH 44702-1732 [Cite as State v. Blackshear, 2013-Ohio-77.]
Gwin, J.,
{¶1} Appellant Craig Blackshear (“Blackshear”) appeals from the April 18, 2012
judgment entry of the Stark County Court of Common Pleas convicting him of Domestic
Violence, a felony of the third degree.
Facts and Procedural Background
{¶2} In 2012, the Stark County Grand Jury returned an indictment that charged
Blackshear with one count of felony domestic violence. This charge arose from
Blackshear assaulting his live-in girlfriend, M.S., which included choking her and holding
a knife to her face. Blackshear pleaded not guilty to this charge, and the case
proceeded to trial by jury in the Stark County Court of Common Pleas.
The Trial
{¶3} During voir dire, the state exercised only two of their four possible
peremptory challenges. Both of the challenges were used to remove African-American
members of the venire. In response to defense counsel's challenges to the removal of
these jurors pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69(1986), the state claimed its race neutral basis for removing the first individual was
the fact that the potential juror had a felony conviction from 1971, and had been
charged with domestic violence although the charge was later dismissed. The race
neutral basis for striking the second individual was that he also had felony convictions
from 1964 and 1972. The state noted that, despite its removal of two African-Americans
from the venire, one African-American was seated on the jury. Stark County, Case No. 2012-CA-84 3
The Testimony
{¶4} On January 14, 2012, shortly after midnight, M.S. called 9-1-1 claiming
Blackshear, her live-in boyfriend, had assaulted her. M.S. stated Blackshear had
pushed her to the ground, choked her, and put a knife to her face. She then waited for
Blackshear to fall asleep and left the house to call 9-1-1. She claimed Blackshear had
assaulted her at different locations throughout the evening as they were drinking and
smoking marijuana with friends. Prior to Blackshear falling asleep near midnight, M.S.
did not attempt to get away from him or summons help, even though the violence
allegedly lasted approximately four hours during which there were several occasions
when she was separated from Blackshear.
{¶5} During the cross examination of M.S., defense counsel attempted to
questioned her about why their argument escalated. M.S. stated that she called
Blackshear an alcoholic and he responded by mentioning her abortion. The state
objected to this line of questioning. Defense counsel reasoned that Blackshear's use of
this sensitive subject would provide a possible motive for M.S. to lie about her
allegations. The court sustained the objection and instructed the jury to disregard any
mention of an abortion. Prior to closing arguments, defense counsel proffered that the
purpose of this line of questioning was to establish that Blackshear’s reference to the
abortion precipitated M.S.’s call to 9-1-1, rather than the alleged assault.
{¶6} Canton Police Officer Michael Roberts responded to the 9-1-1 call. Officer
Roberts met M.S. coming out of her car. The officer talked to her briefly so that
paramedics could treat her. M.S. told Officer Roberts that Blackshear had assaulted her
throughout the day, and that he was inside the house sleeping. M.S. let the officer into Stark County, Case No. 2012-CA-84 4
the house, who then went to the bedroom and awakened Blackshear. Blackshear
appeared drunk, according to Officer Roberts, but was cooperative. The knife that
Blackshear used on M.S. was retrieved by Officer Roberts in the bedroom between a
wall and the dresser, within eight feet from where Blackshear was sleeping. Officer
Roberts noticed that M.S. was upset and timid. He also noticed marks on her arms, her
neck area, as well as scratches and red marks on her upper chest area. Photographs of
these marks were taken.
{¶7} M.S. also claimed that Blackshear told her he was going to rape her;
however, he fell asleep before carrying out his threat. Although Officer Roberts stated
that M.S. told him Blackshear threatened to rape her, there is no reference to this in the
Officer's narrative police report. The Officer explained that M.S. did not want to file rape
charges. M.S. did not seek medical care because of this incident. In letters she sent to
Blackshear while he was in jail awaiting trial, M.S. expressed a desire to continue their
relationship after this case concluded.
Verdict and Sentence
{¶8} The jury found Blackshear guilty as charged in the indictment. The trial
court, upon accepting the jury's verdict and convicting Blackshear of the charged
offense, imposed a 36-month prison sentence.
Assignments of Error
{¶9} Blackshear raises three assignments of error,
{¶10} “I. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO USE A
PEREMPTORY CHALLENGE IN A RACIALLY DISCRIMINATORY FASHION. Stark County, Case No. 2012-CA-84 5
{¶11} “II. THE TRIAL COURT ERRED IN IMPAIRING APPELLANT'S RIGHT TO
CROSS EXAMINE THE ALLEGED VICTIM.
{¶12} “III. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
I.
{¶13} A defendant is denied equal protection of the law guaranteed to him by the
Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the
Ohio Constitution when the state places the defendant on trial before a jury from which
members of the defendant's race have been purposely excluded. Strauder v. W.
Virginia, 100 U.S. 303, 305, 25 L.Ed. 664(1880); State v. Hernandez, 63 Ohio St.3d
577, 589 N.E.2d 1310(1992); State v. Bryant, 104 Ohio App.3d 512, 516, 662 N.E.2d
846(6th Dist. 1995). The “equal protection clause forbids a prosecutor from challenging
potential jurors solely on account of their race or on the assumption that jurors of the
same race as the defendant will be unable to impartially consider the state's case
against the defendant.” State v. Bryant, 104 Ohio App.3d 516; Batson v. Kentucky, 476
U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).
{¶14} In his first assignment of error, Blackshear maintains that the trial court
failed to conduct a proper constitutional analysis as outlined in Batson v. Kentucky, in
determining that the state was not racially motivated in excluding two African-Americans
from the jury through the use of peremptory challenges. See, Hicks v. Westinghouse
Materials Co., 78 Ohio St.3d 95, 98, 676 N.E. 2d 872(1997); State v. Toland, 5th Dist.
No. 2006-CA-0162, 2007-Ohio-644. Stark County, Case No. 2012-CA-84 6
{¶15} Whenever a party opposes a peremptory challenge by claiming racial
discrimination “[a] judge should make clear, on the record, that he or she understands
and has applied the precise Batson test * * *.” Hicks v. Westinghouse Materials Co., 78
Ohio St.3d at 99, 676 N.E. 2d 872.
{¶16} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:
The United States Supreme Court set forth in Batson the test to be
used in determining whether a peremptory strike is racially motivated.
First, a party opposing a peremptory challenge must demonstrate a prima-
facie case of racial discrimination in the use of the strike. Id. at 96, 106
S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a prima-facie case, a litigant
must show he or she is a member of a cognizable racial group and that
the peremptory challenge will remove a member of the litigant's race from
the venire. The peremptory-challenge opponent is entitled to rely on the
fact that the strike is an inherently ‘discriminating’ device, permitting ‘those
to discriminate who are of a mind to discriminate’. State v. Hernandez
(1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313, certiorari denied
(1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d 206. The litigant must
then show an inference of racial discrimination by the striking party. The
trial court should consider all relevant circumstances in determining
whether a prima-facie case exists, including all statements by counsel
exercising the peremptory challenge, counsel's questions during voir dire,
and whether a pattern of strikes against minority venire members is
present. See, Batson at 96-97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Stark County, Case No. 2012-CA-84 7
Assuming a prima-facie case exists, the striking party must then articulate
a race-neutral explanation ‘related to the particular case to be tried.’ Id. at
95, 106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general
good faith will not suffice. However, the explanation ‘need not rise to the
level justifying exercise of a challenge for cause.’ Id. at 97, 106 S.Ct. at
723, 90 L.Ed.2d at 88. The critical issue is whether a discriminatory intent
is inherent in counsel's explanation for use of the strike; intent is present if
the explanation is merely pretext for exclusion based on race. Hernandez
v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395,
409(1991).
Hick, 78 Ohio St.3d. at 98-99, 676 N.E.2d 872.
{¶17} Although the prosecutor must present a comprehensible reason, “[t]he
second step of this process does not demand an explanation that is persuasive or even
plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v.
Elem, 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d 834(1995) (per curiam);
Rice v. Collins, 546 U.S. 333, 126 S.Ct. 969, 163 L.Ed.2d 824(2006).
{¶18} Last, the trial court must determine whether the party opposing the
peremptory strike has proved purposeful discrimination. Purkett v. Elem, 514 U.S. at
766-767, 115 S.Ct. 1769, 131 L.Ed.2d 834. It is at this stage that the persuasiveness,
and credibility, of the justification offered by the striking party becomes relevant. Id. at
768, 115 S.Ct. at 1771, 131 L.Ed.2d 834. The critical question, which the trial judge
must resolve, is whether counsel's race-neutral explanation should be believed.
Hernandez v. New York, 500 U.S. at 365, 111 S.Ct. 1859,114 L.Ed.2d 395; State v. Stark County, Case No. 2012-CA-84 8
Nash, 5th Dist. No. 1995 CA 00024, 1995 WL 767987(August 14, 1995). This final step
involves evaluating “the persuasiveness of the justification” proffered by the prosecutor,
but “the ultimate burden of persuasion regarding racial motivation rests with, and never
shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769, 131
L.Ed.2d 834; Rice v. Collins, 546 U.S. at 338, 126 S.Ct. 969, 163 L.Ed.2d 824.
{¶19} On direct appeal in federal court, the credibility findings a trial court makes
in a Batson inquiry are reviewed for clear error. Hernandez v. New York, 500 U.S. at
364-366, 111 S.Ct. 1859, 114 L.Ed.2d 395. (Holding that evaluation of a prosecutor's
credibility “lies ‘peculiarly within a trial judge's province’”). Rice v. Collins, 546 U.S. at
338, 126 S.Ct. 969, 163 L.Ed.2d 824.
{¶20} It is irrelevant how many minority jurors remain on the panel if even one is
excluded because of race. State v. Bryant, 104 Ohio App.3d 512, 662 N.E.2d 846; State
v. Tuck 80 Ohio App.3d 721, 724, 610 N.E.2d 591(10th Dist. 1992) (Batson, applicable
even if there is only one African-American juror on the panel); Jones v. Ryan, 987 F.2d
960, 972( 3rd Cir. 1993); United States v. David, 803 F.2d 1567(11th Dist. 1986).
{¶21} In the case at bar, the prosecutor voluntarily explained her reasons for the
peremptory strikes. Hicks v. Westinghouse, 78 Ohio St.3d at 100, 676 N.E. 2d 872;
State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d 1310; Hernandez v. New York,
supra; State v. Nash, supra. The state claimed its race neutral basis for the first
individual was the fact that the potential juror had a felony conviction from 1971, and
had been charged with domestic violence although the charge was later dismissed. The
race neutral basis for striking the second individual was that he also had felony
convictions from 1964 and 1972. Blackshear’s attorney responded that each of the Stark County, Case No. 2012-CA-84 9
jurors was African-American; her client was African-American; and that each juror
indicated he or she could be fair and impartial. Trial counsel did not offer any further
explanation to make her prima facie case as required in the first step of the Batson test.
She did not refer to any statements made by the prosecutor that would indicate that the
challenge was discriminatory, did not point to a pattern of discrimination and did not
point to specific questions in voir dire that would indicate a discriminatory motive.
Moreover, even if Blackshear had met his prima facie burden to go forward on the
challenge, the prosecutor gave a race neutral reason for using a peremptory challenge
against each juror.
{¶22} We do not find that the dismissals of juror 32 and juror 52 were in error
and we find that the prosecutor's reason for using a peremptory challenge on juror 32
and juror 52 was racially neutral.
{¶23} Blackshear’s first assignment of error is overruled.
II.
{¶24} In his second assignment of error, Blackshear maintains that the trial court
should have permitted him to present evidence that he had insulted M.S. about a prior
abortion, and that these insults gave her motivation to fabricate the domestic violence
allegations.
{¶25} The admission or exclusion of evidence rests in the sound discretion of
the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343(1987). Our task is
to look at the totality of the circumstances in the particular case under appeal, and
determine whether the trial court acted unreasonably, arbitrarily or unconscionably in
allowing or excluding the disputed evidence. State v. Oman, 5th Dist. No.1999CA00027, Stark County, Case No. 2012-CA-84 10
2000 WL 222190(Feb. 14, 2000). Generally, all relevant evidence is admissible. Evid.R.
402.
{¶26} Every criminal defendant has a constitutional right to present a meaningful
defense. Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636(1986).
However, this right does not engender an unfettered entitlement to the admission of all
evidence. U.S. v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413(1998).
{¶27} The Sixth Amendment of the United States Constitution guarantees the
right of an accused in a criminal prosecution "to be confronted with the witnesses
against him.” Davis v. Alaska, 415 U.S. 308, 353, 94 S.Ct. 1105, 39 L.Ed.2d 347(1974).
That right, incorporated in the Fourteenth Amendment and therefore available in state
proceedings under Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d
923(1965) includes the right to conduct reasonable cross-examination. Davis, 415 U.S.
at 315-316, 94 S.Ct. 1105, 39 L.Ed.2d 347.
{¶28} Reasonable cross-examination includes not only the opportunity to
impeach a witness,
Cross-examination is the principal means by which the believability
of a witness and the truth of his testimony are tested. Subject always to
the broad discretion of a trial judge to preclude repetitive and unduly
harassing interrogation, the cross-examiner is not only permitted to delve
into the witness' story to test the witness' perceptions and memory, but the
cross-examiner has traditionally been allowed to impeach, i.e., discredit,
the witness* * *A more particular attack on the witness' credibility is
effected by means of cross-examination directed toward revealing Stark County, Case No. 2012-CA-84 11
possible biases, prejudices, or ulterior motives of the witness as they may
relate directly to issues or personalities in the case at hand. The partiality
of a witness is subject to exploration at trial, and is ‘always relevant as
discrediting the witness and affecting the weight of his testimony.’ 3A J.
Wigmore Evidence Section 940, p. 775 (Chadbourn rev. 1970). We have
recognized that the exposure of a witness' motivation in testifying is a
proper and important function of the constitutionally protected right of
cross-examination. [415 U.S. 317]”. Greene v. McElroy, (1959), 360 U.S.
474, 496, 3 L.Ed. 2d 1377, 79 S.Ct. 1400.
Davis, 415 U.S. at 316-317, 94 S.Ct. 1105, 39 L.Ed.2d 347. Accord, Olden v. Kentucky,
488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513(1988); Delaware v. Van Arsdall, 475 U.S.
673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674(1986). A trial court can impose
reasonable limits upon cross-examination,
It does not follow, of course, that the Confrontation Clause of the
Sixth Amendment prevents a trial judge from imposing any limits on
defense counsel's inquiry into the potential bias of a prosecution witness.
On the contrary, trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety, or
interrogation that is repetitive or only marginally relevant. And as we
observed earlier this Term, ‘the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is Stark County, Case No. 2012-CA-84 12
effective in whatever way, and to whatever extent, the defense might
wish.’ Delaware v. Fensterer (1985), 474 U.S. 15, 20, 106 S.Ct. 292 (per
curiam). (Emphasis in original).
Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431, 89 L.Ed.2d 674.
{¶29} In determining whether the confrontation clause has been violated, the
focus of the prejudice inquiry "must be on the particular witness, not on the outcome of
the entire trial.” Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, 89 L.Ed.2d 674. In Van
Arsdall, the United States Supreme Court held,
We think that a criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from engaging in
otherwise appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby “to expose to the jury
the facts from which jurors . . . could appropriately draw inferences relating
to the reliability of the witness”. David v. Alaska, supra, at 318, 94 S.Ct.
1105.
Van Arsdall, at 475 U.S. 680, 106 S.Ct. 1431, 89 L.Ed.2d 674; See, also, Olden. In Van
Arsdall, the Court further explained,
The correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized, a reviewing court
might nonetheless say that the error was harmless beyond a reasonable
doubt. Whether such an error is harmless in a particular case depends
upon a host of factors, all readily accessible to reviewing courts. These
factors include the importance of the witness' testimony in the Stark County, Case No. 2012-CA-84 13
prosecution's case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution's case.
Cf. Harrington, 395 U.S., at 254, 23 L.Ed. 2d 284, 89 S.Ct. 1726;
Schneble v. Florida, 405 U.S. at 432, 31 L.Ed. 2d 340, 92 S.Ct. 1056.
Van Arsdall, 475 U.S. at 685, 106 S.Ct. 1431, 89 L.Ed.2d 674.
{¶30} Without a doubt, M.S.’s testimony was of great importance to the state’s
case. The testimony was not cumulative; M.S. was the only eyewitness to the events
other than Blackshear. In the case at bar, the discovery of the knife in the bedroom
where Blackshear was sleeping and the photographs of M.S.’s injuries lend credence to
her claim that Blackshear had assaulted her, choked her and held a knife to her throat.
In addition, Blackshear’s counsel was permitted wide latitude in its cross-examination of
M.S., including questioning her about her drinking and drug use the night in question
and her opportunity to summon help from friends, neighbors and alleged witnesses at
various points during the night. Counsel also cross-examined M.S. about her contact
with Blackshear while he was in jail awaiting trial, including introducing letters M.S. had
written to Blackshear during that time and questioning her about the contents of those
letters. Counsel was permitted to show the circumstances surrounding the
confrontation, including the substance of the argument between the two that eventually
led to Blackshear resorting to violence. Stark County, Case No. 2012-CA-84 14
{¶31} Upon review of the entire record, it is clear that there was ample testimony
for the jury to consider M.S.’s credibility and motivation to fabricate the allegations. Any
violation of Blackshear's confrontation rights was harmless beyond a reasonable doubt.
{¶32} Accordingly, Blackshear's right to confront his accuser pursuant to the
Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 10 of the Ohio Constitution were not violated.
{¶33} Blackshear’s second assignment of error is overruled.
III.
{¶34} In his third assignment of error, Blackshear maintains that his conviction is
against the manifest weight and the sufficiency of the evidence.
{¶35} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-
1017, 926 N.E.2d 1239, ¶146; State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720,
933 N.E.2d 296, ¶68.
{¶36} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541(1997), superseded by
constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d
89,1997-Ohio-355, 684 N.E.2d 668. Weight of the evidence concerns, Stark County, Case No. 2012-CA-84 15
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 sic.)
Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶37} 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 fact finder’s resolution of the conflicting
testimony. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Tibbs v. Florida,
457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982). However, an appellate court
may not merely substitute its view for that of the jury, but must find 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.’” State v. Thompkins, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “‘the
exceptional case in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * * Stark County, Case No. 2012-CA-84 16
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶38} To find Blackshear guilty of Domestic Violence the trier of fact would have
to find that he knowingly caused or attempt to cause physical harm to a family or
household member. R.C. 2919.25(A). Physical harm to persons is defined as “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.”
R.C. 2901.01(A) (3). R.C. 2901.22 defines “knowingly” as follows,
(B) A person 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. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
{¶39} “Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695(2001).
(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist. No.
16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott, 104 Ohio App.3d 812, 663
N.E.2d 412(1995). Stark County, Case No. 2012-CA-84 17
{¶40} Blackshear does not dispute that M.S. was a ““family or household
member.” Further, M.S. and Officer Roberts Johnson each testified to the injuries visible
on M.S. after the incident. Photographs of the injuries were submitted to the jury.
{¶41} We hold, therefore, that the state met its burden of production regarding
each element of the crime of Domestic Violence and, accordingly, there was sufficient
evidence to submit the charge to the jury and to support Blackshear's conviction.
{¶42} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,
quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.
In other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,
at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.
{¶43} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such Stark County, Case No. 2012-CA-84 18
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752
(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714
(May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may
accept only portions of it as true. State v. Raver, 10th Dist. No. 02AP-604, 2003- Ohio-
958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.
Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954),
the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768. Stark County, Case No. 2012-CA-84 19
161 Ohio St. at 477-478. (Emphasis added).
{¶44} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury as the trier of fact was
in the best position to evaluate this competent, credible evidence, and we will not
substitute our judgment for that of the trier of fact. The jury neither lost its way nor
created a miscarriage of justice in convicting Blackshear of Domestic Violence.
{¶45} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Blackshear had committed the crime of Domestic Violence.
{¶46} Blackshear’s third assignment of error is overruled.
{¶47} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, J.,
Delaney, P.J., and
Wise, J., concur
_________________________________ HON. W. SCOTT GWIN
_________________________________ HON. PATRICIA A. DELANEY
_________________________________ HON. JOHN W. WISE WSG:clw 1204 [Cite as State v. Blackshear, 2013-Ohio-77.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : CRAIG BLACKSHEAR : : : Defendant-Appellant : CASE NO. 2012-CA-84
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas is affirmed.
_________________________________ HON. JOHN W. WISE