State v. Depriest

2023 Ohio 3430

• Court: Ohio Court of Appeals
• Decided: September 19, 2023
• Docket: 22CA15
• Status: Published

Opinion

[Cite as State v. Depriest, 2023-Ohio-3430.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 22CA15

v. :

RAYMOND DEPRIEST, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Mary Adeline R. Lewis, Xenia, Ohio, for appellant1.

Paul G. Bertram, III, City Law Director, and Amy Bean, Assistant Law Director, City of Marietta, Marietta, Ohio, for appellee. ___________________________________________________________________ CRIMINAL APPEAL FROM MUNICIPAL COURT DATE JOURNALIZED:9-19-23 ABELE, J.

{¶1} This is an appeal from a Marietta Municipal Court

judgment of conviction and sentence. Raymond Depriest, defendant

below and appellant herein, assigns the following error for review:

“THE FINDING OF GUILTY ON THE CHARGE OF DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

1 Different counsel represented appellant during the trial court proceedings. 2 WASHINGTON, 22CA15

{¶2} On August 23, 2021, Marietta Police Department Patrolman

Justin McElroy filed a criminal complaint that charged appellant

with R.C. 2919.25(A) domestic violence. The affidavit alleged that

on the previous day, Jessica Strader, the victim, suffered a

lacerated nose, a lacerated face, three loosened teeth and one

chipped tooth. Strader stated that appellant struck her in the

face with her cell phone, then head-butted her nose. On August 25,

2021, the trial court issued a temporary protection order and

released appellant on a personal recognizance bond. Appellant

entered a not guilty plea.

{¶3} At the jury trial, Strader testified that she lived with

appellant and they “had been on and off arguing for about a week

and a half.” Strader returned home from her job around midnight

and fell asleep downstairs on the living room couch. Strader awoke

when appellant returned home around 5:00 a.m. Appellant followed

Strader upstairs to the bathroom and she asked appellant if he got

“what he wanted.” Strader explained that she received multiple

texts from co-workers and friends that evening that appellant had

been “tormenting them” at the bar. Strader and appellant also

exchanged texts that evening and Strader told him, “he was creating

problems, harassing my co-workers, that I was going to get fired 3 WASHINGTON, 22CA15

from my job because of this. It had already been reported to my

managers.”

{¶4} Strader stated that appellant called her a cheater, and

he had proof and he wanted to show her. Strader testified she

walked downstairs and sat on the couch with her phone, “and he was

in front of me leaning over me, yelling at me, just look at this,

just look at this, holding his phone in my face, like basically

trying to get me to look at whatever evidence he had.” When

Strader refused to look at appellant’s phone, he “snatched my phone

out of my hand, smacked me across the face with it, to where I

actually had gotten a gash * * * then he instantly threw it into

the dining room.”

{¶5} After she retrieved her phone, Strader returned upstairs

to wash her face and take a photo “to document it.” Appellant

followed her upstairs and continued to yell. Strader then went

downstairs and was:

standing at the bottom of the stairs with my back against the front door, when he proceeded to argue, and he looked at me, and he said, I’ll f**king - excuse my French - murder you. I will murder you. And I looked at him, and I said f**king do it then. Just do it. And he head butted me, straight in my nose. He broke my nose straight across. He fractured my maxillary plate, he caused my three bottom teeth to be loose, and chipped my tooth.

Strader then called a friend to drive her to the hospital while 4 WASHINGTON, 22CA15

appellant sat on the couch. Strader added that she is 5'4", and

appellant is approximately 6'4".

{¶6} At trial, the state introduced: (1) a photo of Strader’s

gashed temple, (2) a photo of Strader’s broken nose, (3) a photo of

Strader’s chipped tooth, and (4) texts between appellant and

Strader. Strader explained that appellant broke her nose,

“completely * * * across my maxillary plate, which is your sinus

plate, that is underneath the bone that sits underneath your eye

was also fractured.” As a result of appellant head’s butt, Strader

had three loose teeth, one chipped tooth, and experienced headaches

and sensitive teeth. Strader said the next day, appellant texted

her and said that he hoped she was ok.

{¶7} The state’s exhibit with the parties’ text exchange

revealed that, after the incident, appellant texted to Strader:

I had a piece of skin and blood under my nail would definitely say my nail under or in your face. * * * Just want to make sure you ok and I want to apologize for a lot but overall just hope you ok. * * * This was never how I wanted it to be. No I cannot make what happened with us go away but I can say I’m not ok with what happened and will never be proud of it. Just want you to know seeing you hurt in any way is not ok with me.

{¶8} On cross-examination, Strader acknowledged that, before

appellant came home that evening, Strader’s coworkers blew up her

phone with messages that appellant had asked questions about 5 WASHINGTON, 22CA15

Strader cheating. “We had a very rocky relationship. We had

broken up a couple of times.” The couple continued to reside

together, partly because they shared a lease.

{¶9} Patrolman McElroy testified that, when he arrived at the

hospital, he noticed Strader’s nose “appeared to be fairly swollen.

The bottom half was much wider than the top half. You could see

the laceration on her nose, and on the side of her face.” Strader

informed McElroy that she and appellant, her ex-fiancé, lived

together. McElroy took photos of the injuries, took a written

statement, and prepared a domestic violence warrant.

{¶10} After the state rested, the defense made a Crim.R. 29

motion for judgment of acquittal. The trial court denied the

motion. At the conclusion of the trial, the jury found appellant

guilty as charged. The trial court sentenced appellant to (1)

serve 100 days in jail with 90 days suspended, (2) serve the ten

jail days via electronically monitored house arrest, (3) pay a $200

fine and costs, (4) submit to one year of community control, and

(5) have no contact with the victim for one year. This appeal

followed.

{¶11} In his sole assignment of error, appellant asserts that

his domestic violence conviction is against the manifest weight of

the evidence. In particular, appellant contends that the state 6 WASHINGTON, 22CA15

failed to prove that he acted knowingly in the commission of the

offense.

{¶12} R.C. 2919.25(A) provides that “[n]o person shall

knowingly cause or attempt to cause physical harm to a family or

household member.” “Physical harm to persons” means “any injury,

illness, or other physiological impairment, regardless of its

gravity or duration.” R.C. 2901.01(A)(3). Moreover, R.C. 2901.22

defines “knowingly” as:

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. A person has knowledge of circumstances when he is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

{¶13} Appellant argues that the evidence adduced at trial did

not establish that he violated R.C. 2919.25(A) because the state

failed to prove he acted knowingly.

{¶14} The function of an appellate court when reviewing the

weight of the evidence is to determine whether the greater amount

of credible evidence supports the verdict. State v. Thompkins, 78

Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The court must review 7 WASHINGTON, 22CA15

the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine

whether the court clearly lost its way and created a manifest

miscarriage of justice. Id., quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1983). If the fact finder clearly

lost its way, a reviewing court must reverse the conviction and

order a new trial. Id. We will not reverse a conviction if the

state adduced substantial evidence for a reasonable tier of fact to

conclude that the state established all of the essential elements

of the offenses beyond a reasonable doubt. State v. Getsy, 84 Ohio

St.3d 180, 193-194, 702 N.E.2d 866 (1998); State v. McCutcheon, 4th

Dist. Washington No. 04CA45, 2005-Ohio-4955, ¶ 19; State v.

McNichols, 4th Dist. Hocking No. 02CA11, 2002-Ohio-6253, ¶ 11.

While a manifest weight argument permits an appellate court to

weigh the evidence, a presumption exists that the jury can best

judge witness credibility. Seasons Coal Co., Inc. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), McCutcheon at ¶ 19;

State v. De Hass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.

{¶15} In the case sub judice, appellant contends that the

greater amount of credible evidence proves that the victim

sustained injuries to her cheek, nose and teeth due to an 8 WASHINGTON, 22CA15

unintentional or accidental, head-butt. According to appellant,

because minor inconsistencies exist in Strader’s testimony,

Strader’s credibility is suspect.

{¶16} After our review of the evidence adduced at trial, we

conclude that the jury did not lose its way and create a manifest

miscarriage of justice. The fact that the evidence may be subject

to different interpretations does not render a conviction against

the manifest weight of the evidence. State v. Wilson, 2d Dist.

Montgomery No. 22581, 2009-Ohio-525, ¶ 14; State v. Gutierrez, 2d

Dist. Montgomery No. 29306, 2022-Ohio-1692, ¶ 11. The trier of

fact may choose to believe all, part of, or none of the testimony

of any witness. Here, the state presented evidence, if believed,

that appellant knowingly caused physical harm to Strader by

striking her face and head-butting her nose and mouth. Contrary to

appellant’s assertions, the greater amount of credible evidence

offered at trial established beyond a reasonable doubt that

appellant was the aggressor in the altercation. The state

presented substantial evidence to support the guilty verdict: (1)

photographic evidence of the victim’s injuries, (2) the victim’s

testimony, and (3) Patrolman McElroy’s testimony.

{¶17} Also, the evidence, if believed, supports the jury’s

finding that appellant acted knowingly. The evidence adduced at 9 WASHINGTON, 22CA15

trial revealed that appellant took the victim’s phone from her

hands and struck her in the face with the phone. This fact is

supported by the victim’s testimony, photographic evidence, and

appellant’s text message that stated: “I had a piece of skin and

blood under my nail would definitely say my nail under or in your

face.”

{¶18} Although appellant contends that the injury to the

victim’s nose and teeth resulted from “an unintentional mistake,”

and that Strader attempted to block appellant from descending the

stairs and safely exiting the residence, once again we point out

that the jury chose to believe the victim’s testimony. “A weight

of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by

the evidence is more believable or persuasive.” Wilson, supra, at

¶ 12. See also DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus (witness credibility is a question

primarily for the trier of fact).

{¶19} As the trier of fact, a jury is best able to view

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

and use those observations to assess witness credibility and the

weight to be given to the evidence. State v. Prickett, 12th Dist.

Butler No. CA2017-01-010, 2017-Ohio-8128, ¶ 21. Here, the jury 10 WASHINGTON, 22CA15

obviously found Strader’s testimony credible and appellant’s

“accident” defense not credible. “[W]hen conflicting evidence is

presented at trial, a conviction is not against the manifest weight

of the evidence simply because the trier of fact believed the

prosecution testimony.” State v. Lunsford, 12th Dist. Brown No.

CA2010-10-021, 2011-Ohio-6529, ¶ 17; State v. Acevedo, 2016-Ohio-

7344, 71 N.E.3d 1281, ¶ 31 (9th Dist.); State v. Baber, 2021-Ohio-

1506, 171 N.E.3d 1257, ¶ 42 (1st Dist.). Thus, in the case sub

judice, we believe that the surrounding facts and circumstances

support the jury’s finding that appellant acted knowingly.

{¶20} Consequently, because the state presented substantial

evidence to support the verdict, we find that the jury did not lose

its way and create a manifest miscarriage of justice. Accordingly,

we overrule appellant’s assignment of error and affirm the trial

court’s judgment.

JUDGMENT AFFIRMED. WASHINGTON, 22CA15 11

JUDGMENT ENTRY

It is ordered that the judgment be affirmed. Appellee shall recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.