State v. Cabrera

2023 Ohio 770

• Court: Ohio Court of Appeals
• Decided: March 13, 2023
• Docket: 2022-A-0083, 2022-A-0084, 2022-A-0085 & 2022-A-0086
• Status: Published

Opinion

[Cite as State v. Cabrera, 2023-Ohio-770.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NOS. 2022-A-0083 CITY OF ASHTABULA, 2022-A-0084 2022-A-0085 Plaintiff-Appellee, 2022-A-0086

- vs - Criminal Appeals from the ELISEO CABRERA, Municipal Court

Defendant-Appellant. Trial Court Nos. 2021 CRB 01555 C 2021 CRB 01555 A 2021 CRB 01555 B 2021 CRB 01555 D

OPINION

Decided: March 13, 2023 Judgment: Affirmed

Cecilia M. Cooper, Ashtabula City Solicitor, and Lori B. Lamer, Special Assistant Solicitor, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko, Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Eliseo Cabrera, appeals his conviction for domestic violence

following a bench trial.

{¶2} In 2021, complaints were filed in four separate cases charging Cabrera with

the following first-degree misdemeanors: criminal damaging in violation of R.C. 2909.06(A)(2), endangering children in violation of R.C. 2912.22(C)(1), domestic violence

(naming Cabrera’s daughter as the victim) in violation of R.C. 2919.25(A), and domestic

violence (naming Cabrera’s girlfriend as the victim) in violation of R.C. 2919.25(C).1 The

complaints stemmed from a dispute between Cabrera and his girlfriend that occurred at

the home where they resided with their three children on the evening of December 6,

2021.

{¶3} Cabrera pleaded not guilty, and the cases proceeded to a consolidated

bench trial. The state presented the testimony of Cabrera’s girlfriend and the responding

police officer. After the close of the state’s case, the court dismissed all of the complaints

except the complaint charging Carbrera with domestic violence against his daughter.

Cabrera then testified on his own behalf, and the defense rested.

{¶4} Thereafter, the trial court found Cabrera guilty of domestic violence as

charged in the sole remaining complaint and proceeded directly to sentencing. The court

sentenced Cabrera to 60 days of confinement, with 50 days suspended, six months of

probation with conditions, and a $150.00 fine. Upon Cabrera’s motion, the court stayed

the sentence pending appeal.

{¶5} In his sole assigned error, Cabrera argues:

The trial court committed prejudicial error and deprived Eliseo Cabrera of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article One, Section Ten of the Ohio Constitution by finding Mr. Cabrera guilty of domestic violence because the conviction was not supported by sufficient evidence and is against the manifest weight of the evidence.

1. With respect to the case alleging domestic violence against Cabrera’s girlfriend, absent circumstances not alleged here, a violation of R.C. 2919.25(C) is a misdemeanor of the fourth degree. At trial, the state acknowledged that this complaint was incorrectly worded. As this complaint was ultimately dismissed, we merely note the discrepancy for clarification. 2

Case No. 2022-A-0083, 2022-A-0084, 2022-A-0085, 2022-A-0086 {¶6} “Whether the evidence is legally sufficient to sustain a verdict is a question

of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “In essence,

sufficiency is a test of adequacy.” Id. “In a sufficiency-of-the-evidence inquiry, the

question is whether the evidence presented, when viewed in a light most favorable to the

prosecution, would allow any rational trier of fact to find the essential elements of the

crime beyond a reasonable doubt.” State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670,

170 N.E.3d 816, ¶ 15, citing State v. Jenks, 61 Ohio St.3d 259, 259-60, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

{¶7} Unlike sufficiency of the evidence, “[w]eight of the evidence concerns ‘the

inclination of the greater amount of credible evidence * * * to support one side of the issue

rather than the other.’” (Emphasis sic.) Thompkins at 387, quoting Black’s Law Dictionary

1594 (6th Ed.1990). “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 factfinder’s resolution of the conflicting

testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42, 72 L.Ed.2d 652,

102 S.Ct. 2211, 2218 (1982). When considering challenges to the weight of the evidence,

the appellate court reviews “‘the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, 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 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). “‘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.’” 3

Case No. 2022-A-0083, 2022-A-0084, 2022-A-0085, 2022-A-0086 Thompkins at 387, quoting Martin at 175; accord State v. Masters, 11th Dist. Lake No.

2019-L-037, 2020-Ohio-864, ¶ 18-19.

{¶8} Here, Cabrera was convicted of domestic violence against his daughter in

violation of R.C. 2919.25(A), which provides that “[n]o person shall knowingly cause or

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

{¶9} At trial, the state first presented the testimony of Cabrera’s girlfriend. The

girlfriend testified that she and Cabrera have been in a relationship intermittently for 11

years, and they lived together with their three children. She maintained that, on the date

of the incident, she and Cabrera were engaged in a verbal altercation. Ultimately, the

girlfriend went upstairs to lie down with the children. Subsequently, Cabrera grabbed a

telephone which he brought to the girlfriend, telling her that she could call the police. The

couple then began to argue about who was going to call the police, at which point Cabrera

“just tossed the phone,” which hit the couple’s then eight-year-old daughter on the lip.

The daughter was upset, and the girlfriend attempted to calm her. The girlfriend then took

the children to a neighbor’s house for a short time. When the girlfriend returned home,

the house was in disarray, and Cabrera was sleeping. At that point, the girlfriend called

the police.

{¶10} The responding officer testified that when he arrived, household items and

clothing were strewn about the home. The officer woke Cabrera, who smelled strongly

of alcohol, and his eyes were red and glassy, appearing intoxicated. Cabrera denied the

allegations that he had thrown a phone and struck his daughter. The officer observed the

daughter and noticed some redness and possible swelling on her lips.

Case No. 2022-A-0083, 2022-A-0084, 2022-A-0085, 2022-A-0086 {¶11} Following the officer’s testimony, the state rested and moved to amend the

endangering children and criminal damaging charges. The trial court denied the motion.

Cabrera moved to dismiss the complaints charging endangering children and domestic

violence against the girlfriend pursuant to Crim.R. 29. The trial court then dismissed the

complaints charging endangering children, criminal damaging, and domestic violence

involving the girlfriend, concluding that these offenses “were not properly charged in the

complaints.”

{¶12} Cabrera then testified in his own defense. Cabrera maintained that, on the

evening at issue, he and his girlfriend were rearranging items in their home to make room

for a large Christmas tree. While they were moving the items, they consumed alcohol.

The couple had been arguing regarding the girlfriend purportedly being unfaithful.

Thereafter, the couple began to argue regarding whether the girlfriend would leave with

the children, and Cabrera insisted that the girlfriend would not leave in the car because

the car was titled to Cabrera, the girlfriend had not yet obtained her license, and the

girlfriend had been drinking. At this point in the argument, the girlfriend and the couple’s

daughters were in the living room, close to the door. Cabrera obtained the house

telephone to call the police, and the girlfriend tried to take it from him. While they were

“tussling” over the telephone, it “flew” from their hands, and a large portion of the phone

landed by the stairs, and a smaller portion of it became dislodged. Cabrera was unaware

of where the smaller portion of the telephone ultimately landed. Cabrera maintained that

he did not throw the phone and did not see it hit the daughter. Cabrera acknowledged

that the phone was a house telephone, “not a little phone.” After the struggle over the

telephone, the girlfriend left. Cabrera started to tidy the house and then fell asleep.

Case No. 2022-A-0083, 2022-A-0084, 2022-A-0085, 2022-A-0086 {¶13} After the defense rested, defense counsel renewed the Crim.R. 29 motion,

although counsel acknowledged it “may be moot” due to the trial court’s previous ruling.

The trial court overruled the motion and thereafter found Cabrera guilty.

{¶14} On appeal, Cabrera maintains that the evidence was insufficient to establish

that he “knowingly” caused harm to his daughter. R.C. 2901.22(B) provides, in relevant

part, “A person acts knowingly, regardless of purpose, when the person is aware that the

person’s conduct will probably cause a certain result or will probably be of a certain

nature.” “This court has held that the legal concept of ‘knowingly’ incorporates the

scienter requirement that one ought to know one’s actions will ‘probably cause certain

results.’” State v. Krause, 11th Dist. Lake No. 2021-L-019, 2021-Ohio-3657, ¶ 39, quoting

State v. Magnusson, 11th Dist. Lake No. 2006-L-263, 2007-Ohio-6010, ¶ 51.

{¶15} Cabrera maintains that the evidence failed to demonstrate that he acted

knowingly because (1) the state’s evidence was insufficient to establish that he knowingly

caused the daughter physical harm, and (2) Cabrera testified that he did not throw the

phone. The former argument pertains to the sufficiency of the evidence, while the latter

argument pertains to the credibility of the witnesses, and thus the weight of the evidence.

{¶16} As to sufficiency, viewing the evidence in a light most favorable to the State,

the evidence indicates that, after Cabrera and his girlfriend fought over the telephone,

Cabrera threw the telephone with enough force as to cause visible injury to the daughter’s

face. See Dent, 2020-Ohio-6670, at ¶ 15. A rational trier of fact could reasonably infer

that Cabrera acted “knowingly,” i.e., with awareness that his conduct of throwing a

telephone toward his daughter would probably cause physical harm to her. See R.C.

Case No. 2022-A-0083, 2022-A-0084, 2022-A-0085, 2022-A-0086 2901.22(B). Accordingly, sufficient evidence supports the culpable mental state of

“knowingly.”

{¶17} As to the weight of the evidence, the trial court, as trier of fact, was free to

believe or disbelieve the testimony of the witnesses. State v. Bennett, 11th Dist. Lake

No. 2022-L-007, 2022-Ohio-4471, ¶ 15, quoting State v. Haney, 11th Dist. Lake No. 2012-

L-098, 2013-Ohio-2823, ¶ 43 (“‘[t]he trier of fact is free to believe or disbelieve all or any

of the testimony’ and ‘is in the best position to take into account inconsistencies, along

with the witnesses’ manner and demeanor, and determine whether the witnesses’

testimony is credible’”). Accordingly, it was within the trial court’s province to discredit

Cabrera’s testimony pertaining to the incident. We cannot say this is the extraordinary

case where the trial court “clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” See Martin, 20 Ohio

App.3d at 175.

{¶18} Accordingly, Cabrera’s assigned error lacks merit.

{¶19} The judgment is affirmed.

MARY JANE TRAPP, J.,

MATT LYNCH, J.,

concur.

Case No. 2022-A-0083, 2022-A-0084, 2022-A-0085, 2022-A-0086