State v. DeMint

Ohio Court of Appeals

State v. DeMint

2018 Ohio 2091

CourtOhio Court of Appeals

DecidedMay 25, 2018

Docket17CA3618

StatusPublished

This text of 2018 Ohio 2091 (State v. DeMint) 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. DeMint, 2018 Ohio 2091 (Ohio Ct. App. 2018).

Pincite

Opinion

[Cite as State v. DeMint, 2018-Ohio-2091.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : : Case No. 17CA3618 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY FRANKLIN D. DEMINT, : : Defendant-Appellant. : Released: 05/25/18 _____________________________________________________________ APPEARANCES:

Stephen T. Wolfe, Wolfe Law Group, LLC, Columbus, Ohio, for Appellant.

Sherri K. Rutherford, Chillicothe Law Director, Chillicothe, Ohio, and Benjamin A. Sigall, Assistant Chillicothe Law Director, Chillicothe, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} A jury in the Chillicothe Municipal Court convicted Franklin D.

DeMint of three violations of the Ohio Revised Code: (1) domestic violence,

R.C. 2919.24; (2) assault, R.C. 2903.13; and (3) disorderly conduct, R.C.

2911.17. Appellant appeals from the trial court’s judgment entered

September 25, 2017. He contends the jury clearly lost its way when it failed

to find that he was acting in self-defense and thus, the verdicts were against

the manifest weight of the evidence. Based upon our review, we find no Ross App. No. 17CA3618 2

merit to Appellant’s argument. Accordingly, we overrule the sole

assignment of error and affirm the judgment of the trial court.

FACTS

{¶2} Appellant was charged with domestic violence, assault, and

aggravated menacing, all misdemeanors, as a result of a series of events

which began over Memorial Day weekend in 2017. The victim was

Appellant’s wife, Anita Brigner, and the incident took place in the couple’s

home in rural Ross County. Appellant was arrested and charged on May 28,

2017. He posted the appropriate bond on May 30, 2017. As a condition of

his bond, Appellant was ordered to refrain from harming, contacting or

bothering Ms. Brigner.

{¶3} Appellant obtained legal representation, pleaded not guilty to the

charges, and filed a jury demand. The matter proceeded to jury trial on

August 29, 2017. Appellant, Ms. Brigner, and the officer who responded to

the incident testified. There was also pictorial evidence of injuries submitted

by both parties.

{¶4} Appellant admitted to striking Ms. Brigner once, in self-defense.

At the conclusion of trial, the jury found Appellant guilty of domestic

violence and assault. Appellant was found not guilty of aggravated

menacing but was instead found guilty of disorderly conduct. Ross App. No. 17CA3618 3

{¶5} The matter was set for sentencing on September 25, 2017. On

that date, the trial court ordered Appellant to serve a 5-day jail sentence in

the Ross County jail, with credit for 2 days previously served; a fine in the

amount of $500.00; and a community control sanction of 2 years. Further,

Appellant was ordered to have no contact with Ms. Brigner. This timely

appeal followed. Additional facts gleaned from the trial testimony are set

forth below, where pertinent.

ASSIGNMENT OF ERROR

I. “THE JURY’S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

STANDARD OF REVIEW

{¶6} “When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully

examine the entire record, weigh the evidence, and consider the credibility

of witnesses.” State v. Evans, 4th Dist. Ross No. 17CA3600, 2018-Ohio-

212, ¶ 7, quoting State v. Topping, 4th Dist. Lawrence No. 11CA6, 2012-

Ohio-5617, ¶ 60. “The reviewing court must bear in mind, however, that

credibility generally is an issue for the trier of fact to resolve.” Id., citing

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass,

10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

This is so because “the trier of fact * * * is in the best position to view the Ross App. No. 17CA3618 4

witnesses and to observe their demeanor, gestures and voice inflections and

to use those observations to weigh credibility.” State v. Fisher, 4th Dist.

Jackson No. 11CA10, 2012–Ohio–6260, ¶ 9.

{¶7} “Once the reviewing court finishes its examination, the court

may reverse the judgment of conviction only if it appears that the fact-finder,

when resolving the conflicts in evidence, clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.” (Quotations omitted.) See Evans, supra, at ¶ 8;

Topping at ¶ 60. If the State presented substantial evidence upon which the

trier of fact reasonably could conclude, beyond a reasonable doubt, that all

of the essential elements of the offense had been established, the judgment

of conviction is not against the manifest weight of the evidence. Evans,

supra, at ¶ 9; State v. Cooper, 170 Ohio App.3d 418, 2007–Ohio–1186, 867

N.E.2d 493, ¶ 16 (4th Dist.). A reviewing court should find a conviction

against the manifest weight of the evidence “only in the exceptional case in

which the evidence weighs heavily against the conviction.” Id.

LEGAL ANALYSIS

{¶8} Appellant was convicted of domestic violence, assault, and

disorderly conduct. The elements of R.C. 2919.25, domestic violence,

provide that “No person shall knowingly cause or attempt to cause physical Ross App. No. 17CA3618 5

harm to a family or household member.” The elements of R.C. 2903.12,

assault, provide that “No person shall knowingly cause or attempt to cause

physical harm to another * * *.” And, the elements of R.C. 2911.17,

disorderly conduct, provide that “No person shall recklessly cause

inconvenience, annoyance, or alarm to another by * * * engaging in fighting,

in threatening harm to persons or property, or in violent or turbulent

behavior * * *.”

{¶9} Appellant argues that his actions were in self-defense and that he

proved this by a preponderance of the evidence. Appellant maintains that he

knew Ms. Brigner had anger issues and had previously engaged in violent

behavior. Appellant points out that Ms. Brigner returned to the home late at

night, unannounced, and kicked the door open. Appellant argues that the

evidence demonstrates that he actively tried to avoid confrontation with Ms.

Brigner. He also argues the evidence demonstrates that Ms. Brigner had

multiple opportunities to leave but chose to prolong the argument and

altercation. Furthermore, Appellant contends Ms. Brigner hit him multiple

times although he only struck her once in self-defense.

{¶10} The State counters that the jury heard the evidence and was in

the best position to personally observe the witnesses and evaluate their

credibility. The State points to the photographic evidence which Ross App. No. 17CA3618 6

demonstrates Ms. Brigner sustained a black eye while Appellant received

only a small scratch. When hearing two conflicting versions, the jury

believed Ms. Brigner and did not believe Appellant’s claim of self-defense.

{¶11} At trial, both Ms. Brigner and Appellant testified that the 2017

Memorial Day weekend began with an emergency trip to take Ms. Brigner’s

sick cat to a veterinary clinic in Canal Winchester. Thereafter, the facts and

the characterization of the facts differ. The testimony began with that of

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