[Cite as State v. Crockett, 2014-Ohio-3512.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-13-016
Appellee Trial Court No. CRB 1200230
v.
Derek T. Crockett DECISION AND JUDGMENT
Appellant Decided: August 15, 2014
*****
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Brian A. Smith, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Sandusky County Court, District 1,
Clyde Division, following a jury trial, in which appellant, Derek Crockett, was found
guilty of one count of assault pursuant to R.C. 2903.13. For the following reasons, the
trial court’s judgment is affirmed. {¶ 2} On August 2, 2012, Bryan Koth pulled his vehicle off the street near the
intersection of Maple and Main Streets in Clyde, Ohio, because his check engine light
was on. While Koth was outside the vehicle, appellant parked his own vehicle in a
nearby space, got out and approached Koth on foot. Words were exchanged between the
two men, after which appellant hit Koth in the right ear, causing it to bleed. At some
time during the altercation, appellant had Koth pinned to the hood of Koth’s vehicle.
{¶ 3} While the altercation was taking place another driver, Timothy Dearth,
parked his own vehicle and approached the two men. Appellant then released Koth, who
left the scene and went into the nearby Clyde Police station, followed by appellant.
Appellant and Koth both gave statements to Clyde Police Officer Anthony Travagliante,
after which appellant was charged with one count of assault.
{¶ 4} A jury trial was held on March 14, 2014, at which testimony was heard by
Travagliante, Dearth, Koth, appellant, and appellant’s wife, Melissa Crockett.
{¶ 5} Travagliante testified at trial that appellant said he stopped and parked his
vehicle because Koth gestured at him as their vehicles passed on the street. Appellant
admitted that he exchanged angry words with Koth before hitting Koth on the side of his
head. Travagliante said that appellant told him Koth had an “aggressive manner,” but
that Koth did not hit appellant.
{¶ 6} On cross-examination, Travagliante testified that he did not have any visible
injuries. He also said that Koth was “visibly upset,” while appellant remained calm.
Travagliante further testified that Koth and appellant both appeared to be sober at the
2. time. On redirect, Travagliante said that the only question remaining after interviewing
both men was why appellant decided to stop and talk to Koth.
{¶ 7} Koth testified at trial that appellant’s wife, Melissa, is Koth’s ex-wife. Koth
said that he pulled over and stopped because the engine temperature of his vehicle
appeared to be high. Koth further stated that, after appellant pulled up in his own vehicle,
the two “started to get into a verbal conflict,” after which Koth closed the hood and got
back into his vehicle. Then appellant reached into the vehicle and hit Koth on the back of
his head. Appellant opened Koth’s car door, took Koth out and hit him again before
using his body to pin Koth to the hood of the car.
{¶ 8} Koth stated that appellant stopped hitting him when Dearth pulled up. Koth
further stated that he was “cleaned up” by EMS personnel at the scene, and pictures were
taken of his injuries. He reported having blurry vision, a cut ear and a “massive
headache” after the incident, for which he later went to Fremont Memorial Hospital.
{¶ 9} On cross-examination Koth testified that, at the time of the incident, he and
Melissa had joint custody of their two teenage children. However, a custody hearing was
pending that could potentially change that arrangement. Koth denied motioning for
appellant to come over to his vehicle. Koth stated that he was upset with appellant, who
“physically, mentally and emotionally abused [his] children,” and admitted telling
appellant that he had sex with Melissa while she was married to appellant. Koth denied
showing his fists or kicking appellant, however, he stated that his arm was injured when
3. he attempted to push appellant away. Koth testified that the whole incident took 30 to 40
seconds to unfold.
{¶ 10} Dearth testified at trial that he was driving in Clyde on August 2, 2012,
when he witnessed a “large frame guy” pinning a smaller man to the hood of a car,
standing behind the smaller man, and hitting him on the side of his head. Dearth stated
that he parked his truck, got out and walked over to the two men, at which time the
altercation stopped. The two men then walked into the police station. Dearth said that
the smaller man was not fighting back with his hands, however, he could not see if the
smaller man was kicking the larger man from his vantage point. On cross-examination,
Dearth testified that he could not hear the men talking to each other over the noise of his
own truck. He further testified that he did not know either of the men, however, he gave
appellant’s license plate number to the police.
{¶ 11} After Dearth’s testimony, Travagliante testified on recall that neither man
told police that Koth kicked appellant. At that point the state rested, and appellant took
the stand in his own defense.
{¶ 12} Appellant testified at trial that he was driving home on August 2, 2012,
when he saw Koth driving his vehicle on the other side of the street, near the intersection
of Maple and Main Streets. Appellant said that he saw Koth do “something with his
hand,” just before he turned his vehicle around and followed Koth. When appellant saw
Koth pull his vehicle over to the side of the road and get out he parked nearby, walked
over to Koth, and attempted to address issues he believed existed regarding the raising of
4. Koth’s children (appellant’s stepchildren). Appellant said that, at that point, Koth called
appellant vulgar names and said he was having sex with Melissa. Appellant further said
that Koth “came at him” with clenched hands when appellant told Koth to watch his
mouth. Appellant stated that he “pushed” Koth away, after which Koth kicked appellant
in the abdomen. He then hit Koth on the side of the head, grabbed him and put him on
the hood of his car.
{¶ 13} Appellant admitted that Koth “pushed his buttons” by making vulgar
comments about his wife. He said he let Koth go when Dearth came up, however, he
followed Koth into the police station to tell his own side of the story. On cross-
examination, appellant said he did not recall telling the police that Koth kicked him, and
said that he hit Koth in self-defense. Appellant also said that Koth did not really hurt
him, but he punched Koth repeatedly because he was kicked and because of Koth’s
vulgar comments. On redirect, appellant stated that he is right-handed, and that he hit
Koth on the right side of the head when Koth turned sideways to kick him.
{¶ 14} Melissa Crockett testified at trial that she is appellant’s wife and Koth’s ex-
wife. Melissa stated that she called Koth on her cell phone the day of the altercation
because she saw on Facebook that her son, Thane, who is also Koth’s son, was making
plans to smoke marijuana.
{¶ 15} At the close of Melissa’s testimony the defense rested. Defense counsel
made a motion for acquittal pursuant to Crim.R. 29, which the trial court denied. Closing
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[Cite as State v. Crockett, 2014-Ohio-3512.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-13-016
Appellee Trial Court No. CRB 1200230
v.
Derek T. Crockett DECISION AND JUDGMENT
Appellant Decided: August 15, 2014
*****
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Brian A. Smith, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a judgment of the Sandusky County Court, District 1,
Clyde Division, following a jury trial, in which appellant, Derek Crockett, was found
guilty of one count of assault pursuant to R.C. 2903.13. For the following reasons, the
trial court’s judgment is affirmed. {¶ 2} On August 2, 2012, Bryan Koth pulled his vehicle off the street near the
intersection of Maple and Main Streets in Clyde, Ohio, because his check engine light
was on. While Koth was outside the vehicle, appellant parked his own vehicle in a
nearby space, got out and approached Koth on foot. Words were exchanged between the
two men, after which appellant hit Koth in the right ear, causing it to bleed. At some
time during the altercation, appellant had Koth pinned to the hood of Koth’s vehicle.
{¶ 3} While the altercation was taking place another driver, Timothy Dearth,
parked his own vehicle and approached the two men. Appellant then released Koth, who
left the scene and went into the nearby Clyde Police station, followed by appellant.
Appellant and Koth both gave statements to Clyde Police Officer Anthony Travagliante,
after which appellant was charged with one count of assault.
{¶ 4} A jury trial was held on March 14, 2014, at which testimony was heard by
Travagliante, Dearth, Koth, appellant, and appellant’s wife, Melissa Crockett.
{¶ 5} Travagliante testified at trial that appellant said he stopped and parked his
vehicle because Koth gestured at him as their vehicles passed on the street. Appellant
admitted that he exchanged angry words with Koth before hitting Koth on the side of his
head. Travagliante said that appellant told him Koth had an “aggressive manner,” but
that Koth did not hit appellant.
{¶ 6} On cross-examination, Travagliante testified that he did not have any visible
injuries. He also said that Koth was “visibly upset,” while appellant remained calm.
Travagliante further testified that Koth and appellant both appeared to be sober at the
2. time. On redirect, Travagliante said that the only question remaining after interviewing
both men was why appellant decided to stop and talk to Koth.
{¶ 7} Koth testified at trial that appellant’s wife, Melissa, is Koth’s ex-wife. Koth
said that he pulled over and stopped because the engine temperature of his vehicle
appeared to be high. Koth further stated that, after appellant pulled up in his own vehicle,
the two “started to get into a verbal conflict,” after which Koth closed the hood and got
back into his vehicle. Then appellant reached into the vehicle and hit Koth on the back of
his head. Appellant opened Koth’s car door, took Koth out and hit him again before
using his body to pin Koth to the hood of the car.
{¶ 8} Koth stated that appellant stopped hitting him when Dearth pulled up. Koth
further stated that he was “cleaned up” by EMS personnel at the scene, and pictures were
taken of his injuries. He reported having blurry vision, a cut ear and a “massive
headache” after the incident, for which he later went to Fremont Memorial Hospital.
{¶ 9} On cross-examination Koth testified that, at the time of the incident, he and
Melissa had joint custody of their two teenage children. However, a custody hearing was
pending that could potentially change that arrangement. Koth denied motioning for
appellant to come over to his vehicle. Koth stated that he was upset with appellant, who
“physically, mentally and emotionally abused [his] children,” and admitted telling
appellant that he had sex with Melissa while she was married to appellant. Koth denied
showing his fists or kicking appellant, however, he stated that his arm was injured when
3. he attempted to push appellant away. Koth testified that the whole incident took 30 to 40
seconds to unfold.
{¶ 10} Dearth testified at trial that he was driving in Clyde on August 2, 2012,
when he witnessed a “large frame guy” pinning a smaller man to the hood of a car,
standing behind the smaller man, and hitting him on the side of his head. Dearth stated
that he parked his truck, got out and walked over to the two men, at which time the
altercation stopped. The two men then walked into the police station. Dearth said that
the smaller man was not fighting back with his hands, however, he could not see if the
smaller man was kicking the larger man from his vantage point. On cross-examination,
Dearth testified that he could not hear the men talking to each other over the noise of his
own truck. He further testified that he did not know either of the men, however, he gave
appellant’s license plate number to the police.
{¶ 11} After Dearth’s testimony, Travagliante testified on recall that neither man
told police that Koth kicked appellant. At that point the state rested, and appellant took
the stand in his own defense.
{¶ 12} Appellant testified at trial that he was driving home on August 2, 2012,
when he saw Koth driving his vehicle on the other side of the street, near the intersection
of Maple and Main Streets. Appellant said that he saw Koth do “something with his
hand,” just before he turned his vehicle around and followed Koth. When appellant saw
Koth pull his vehicle over to the side of the road and get out he parked nearby, walked
over to Koth, and attempted to address issues he believed existed regarding the raising of
4. Koth’s children (appellant’s stepchildren). Appellant said that, at that point, Koth called
appellant vulgar names and said he was having sex with Melissa. Appellant further said
that Koth “came at him” with clenched hands when appellant told Koth to watch his
mouth. Appellant stated that he “pushed” Koth away, after which Koth kicked appellant
in the abdomen. He then hit Koth on the side of the head, grabbed him and put him on
the hood of his car.
{¶ 13} Appellant admitted that Koth “pushed his buttons” by making vulgar
comments about his wife. He said he let Koth go when Dearth came up, however, he
followed Koth into the police station to tell his own side of the story. On cross-
examination, appellant said he did not recall telling the police that Koth kicked him, and
said that he hit Koth in self-defense. Appellant also said that Koth did not really hurt
him, but he punched Koth repeatedly because he was kicked and because of Koth’s
vulgar comments. On redirect, appellant stated that he is right-handed, and that he hit
Koth on the right side of the head when Koth turned sideways to kick him.
{¶ 14} Melissa Crockett testified at trial that she is appellant’s wife and Koth’s ex-
wife. Melissa stated that she called Koth on her cell phone the day of the altercation
because she saw on Facebook that her son, Thane, who is also Koth’s son, was making
plans to smoke marijuana.
{¶ 15} At the close of Melissa’s testimony the defense rested. Defense counsel
made a motion for acquittal pursuant to Crim.R. 29, which the trial court denied. Closing
remarks were then made by counsel, after which the jury received instructions from the
5. trial court and retired to deliberate. After a short period of deliberation, a unanimous
guilty verdict was returned. Sentencing was set for a later date, pending the completion
of a presentence investigation report.
{¶ 16} A sentencing hearing was held on March 21, 2013, at which statements
were made by the prosecutor and defense counsel. The trial court then heard evidence of
Koth’s medical bills and lost wages due to the attack, and reviewed appellant’s prior
criminal history, which included multiple traffic law violations, several OVI offenses,
and two former trespass and assault cases. Thereafter, the trial court sentenced appellant
to serve 180 days in jail, with 165 of the days suspended. Appellant was also ordered to
pay a $500 fine, court costs, and restitution to Koth in the amount of $2,500. Appellant
was placed on community control and ordered to attend anger management classes. A
timely notice of appeal was filed on April 17, 2013.
{¶ 17} On appeal, appellant presents the following assignment of error:
I. Appellant’s conviction was against the manifest weight of the
evidence.
{¶ 18} In his sole assignment of error, appellant asserts that the jury “lost its way”
and created a miscarriage of justice by convicting him of assault. In support, appellant
argues that he, not Koth, was the more credible witness at trial. Accordingly, he should
not have been convicted because his own testimony established that: (1) Koth was the
aggressor, and (2) appellant acted in self-defense.
6. {¶ 19} A manifest weight challenge questions whether the state has met its burden
of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In
considering such a challenge the court of appeals, acting as a “thirteenth juror,” reviews
the record, weighs the evidence and all reasonable inferences, and determines whether in
resolving evidentiary conflicts the jury clearly lost its way so as to create a manifest
miscarriage of justice so as to warrant the extreme remedy of a reversal. Id. When
reviewing evidence under this standard, “an appellate court generally must defer to the
fact-finder’s credibility determinations.” State v. Jenkins, 4th Dist. Ross No. 13CA3413,
2014-Ohio-3123, ¶ 34, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,
972 N.E.2d 517, ¶ 21.
{¶ 20} In this case, after reviewing the entire record that was before the trial court,
and weighing all of the evidence and all reasonable inferences, we find no indication that
the jury lost its way so as to create a manifest miscarriage of justice and warrant the
reversal of appellant’s conviction. Accordingly, appellant’s sole assignment of error is
not well-taken.
{¶ 21} The judgment of the Sandusky County Court, District 1, Clyde Division, is
hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
7. State v. Crockett C.A. No. S-13-016
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.
8.