[Cite as State v. Dobbins, 2013-Ohio-3800.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2012CA00203 : MICHAEL GLENN DOBBINS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court, Case No. 2012-CRB-01461
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 26, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ROBERT ZEDELL MICHAEL THOMPSON MASSILLON LAW DEPARTMENT 4774 Munson St. NW Two James Duncan Plaza Suite 400 Massillon, Ohio 44646 Canton, OH 44718 Stark County, Case No. 2012CA00203 2
Delaney, J.
{¶1} Appellant Michael Glenn Dobbins appeals from the September 11, 2012
and October 9, 2012 judgment entries of the Massillon Municipal Court finding him guilty
upon bench trial of one count of domestic violence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} At the time of these events, appellant had been married to Rosza Dobbins
for six years and the couple had three children together, ages five, three, and one. The
family lived at 5753 Oak Drive, Jackson Township, Stark County, Ohio. Mrs. Dobbins is
originally from Hungary but is a recently naturalized U.S. citizen who speaks and
understands English.
{¶3} On June 5, 2012, Ptl. McDannold of the Jackson Township Police
Department reported to the domestic violence shelter in downtown Canton to speak with
Mrs. Dobbins in reference to an incident which occurred on May 18, 2012. Mrs.
Dobbins described an incident of physical violence and completed a sworn affidavit. A
few hours after meeting with officers, Mrs. Dobbins e-mailed photos to the Jackson
Township Police Department which she said were related to the incident.
{¶4} Mrs. Dobbins stated around 8:00 p.m. on May 18, 2012, she put her
youngest child to bed and the other two children were downstairs with appellant
watching television. Mrs. Dobbins went downstairs and found her daughter with
appellant on the couch, playing with appellant’s iPhone. Mrs. Dobbins grabbed the
phone from her daughter. She told police and later testified appellant jumped up and
wrestled her down, grabbed her by the arm and sweater, and pushed her to the floor. Stark County, Case No. 2012CA00203 3
{¶5} After the incident, appellant and Mrs. Dobbins both went upstairs and
appellant made a call on his phone. Mrs. Dobbins testified appellant started recording
her on his phone and called his attorney. He also told her his parents were coming over
to the house. She was afraid that if she called the police that evening, she might go to
jail and lose her children.
{¶6} Mrs. Dobbins told police and later testified she took photos of herself with
her own phone after the May 18 incident. On May 21, she showed the photos to her
mother-in-law in an attempt to prove to her husband’s family that he hurt her.
{¶7} Events came to a head on June 4, 2012. Appellant attended a graduation
ceremony and while he was gone, Mrs. Dobbins moved out of the residence. When
appellant returned, he found the house empty and called police. No one was arrested
that evening. The next day, appellant’s parents came over to the house for the 3-year-
old’s birthday. On the pretext of going to McDonald’s, Mrs. Dobbins put the three
children in her car and drove off, followed by appellant and his parents. Mrs. Dobbins
drove to the Crisis Center and was directed to the domestic violence shelter. During her
stay at the shelter, Mrs. Dobbins was urged to contact police about the May 18 incident.
{¶8} A number of witnesses testified on appellant’s behalf. Two friends of
appellant’s spoke to Mrs. Dobbins about why she wanted to end the marriage; they
testified she never told them about any physical violence. Appellant’s sister and
brother-in-law testified that Mrs. Dobbins had asked to meet with them privately in late
March or early April, 2011, and told them she wanted a divorce. We note appellant’s
sister testified, “The first thing I asked her was has [appellant] ever hit her or the kids,” Stark County, Case No. 2012CA00203 4
and Mrs. Dobbins said no. Appellant’s brother-in-law also testified as a photography
expert and opined that the photos presented by Mrs. Dobbins had been altered.
{¶9} Appellant testified on his own behalf. In reference to the May 18 incident,
he stated he had the iPhone, not his daughter, and Mrs. Dobbins tried to grab it from
him. She kept pulling on his arm and hand but he did not let go; she let go and fell
back, sitting down on a small bed beside the couch. He denied leaping over the couch,
grabbing her, pushing her down, getting on top of her, or tearing her sweater. After the
incident appellant’s friend called on the phone and Mrs. Dobbins told him she wanted a
“quickie divorce.” Appellant stated Mrs. Dobbins was upset with him that night because
he had questioned her earlier about $242,000 she had spent.
{¶10} Appellant was charged with one count of domestic violence pursuant to
R.C. 2919.25(A), a misdemeanor of the first degree. Appellant entered a plea of not
guilty and waived his right to a trial by jury. The case proceeded to bench trial and
appellant was found guilty as charged. The trial court sentenced appellant to a jail term
of 180 days with 147 days suspended, to be served as 3 days in a domestic violence
intervention program and 30 days on electronically monitored house arrest. Appellant
was further ordered to have no contact with the victim and to pay a fine of $500 plus
court costs.
{¶11} Appellant now appeals from the judgment entries of his conviction and
sentence.
{¶12} Appellant raises one assignment of error: Stark County, Case No. 2012CA00203 5
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
ANALYSIS
I.
{¶14} In his sole assignment of error, appellant contends the judgment of the
trial court is against the manifest weight and sufficiency of the evidence.
{¶15} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.”
{¶16} In determining whether a conviction is against the manifest weight of the
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[Cite as State v. Dobbins, 2013-Ohio-3800.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2012CA00203 : MICHAEL GLENN DOBBINS : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court, Case No. 2012-CRB-01461
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 26, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
ROBERT ZEDELL MICHAEL THOMPSON MASSILLON LAW DEPARTMENT 4774 Munson St. NW Two James Duncan Plaza Suite 400 Massillon, Ohio 44646 Canton, OH 44718 Stark County, Case No. 2012CA00203 2
Delaney, J.
{¶1} Appellant Michael Glenn Dobbins appeals from the September 11, 2012
and October 9, 2012 judgment entries of the Massillon Municipal Court finding him guilty
upon bench trial of one count of domestic violence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} At the time of these events, appellant had been married to Rosza Dobbins
for six years and the couple had three children together, ages five, three, and one. The
family lived at 5753 Oak Drive, Jackson Township, Stark County, Ohio. Mrs. Dobbins is
originally from Hungary but is a recently naturalized U.S. citizen who speaks and
understands English.
{¶3} On June 5, 2012, Ptl. McDannold of the Jackson Township Police
Department reported to the domestic violence shelter in downtown Canton to speak with
Mrs. Dobbins in reference to an incident which occurred on May 18, 2012. Mrs.
Dobbins described an incident of physical violence and completed a sworn affidavit. A
few hours after meeting with officers, Mrs. Dobbins e-mailed photos to the Jackson
Township Police Department which she said were related to the incident.
{¶4} Mrs. Dobbins stated around 8:00 p.m. on May 18, 2012, she put her
youngest child to bed and the other two children were downstairs with appellant
watching television. Mrs. Dobbins went downstairs and found her daughter with
appellant on the couch, playing with appellant’s iPhone. Mrs. Dobbins grabbed the
phone from her daughter. She told police and later testified appellant jumped up and
wrestled her down, grabbed her by the arm and sweater, and pushed her to the floor. Stark County, Case No. 2012CA00203 3
{¶5} After the incident, appellant and Mrs. Dobbins both went upstairs and
appellant made a call on his phone. Mrs. Dobbins testified appellant started recording
her on his phone and called his attorney. He also told her his parents were coming over
to the house. She was afraid that if she called the police that evening, she might go to
jail and lose her children.
{¶6} Mrs. Dobbins told police and later testified she took photos of herself with
her own phone after the May 18 incident. On May 21, she showed the photos to her
mother-in-law in an attempt to prove to her husband’s family that he hurt her.
{¶7} Events came to a head on June 4, 2012. Appellant attended a graduation
ceremony and while he was gone, Mrs. Dobbins moved out of the residence. When
appellant returned, he found the house empty and called police. No one was arrested
that evening. The next day, appellant’s parents came over to the house for the 3-year-
old’s birthday. On the pretext of going to McDonald’s, Mrs. Dobbins put the three
children in her car and drove off, followed by appellant and his parents. Mrs. Dobbins
drove to the Crisis Center and was directed to the domestic violence shelter. During her
stay at the shelter, Mrs. Dobbins was urged to contact police about the May 18 incident.
{¶8} A number of witnesses testified on appellant’s behalf. Two friends of
appellant’s spoke to Mrs. Dobbins about why she wanted to end the marriage; they
testified she never told them about any physical violence. Appellant’s sister and
brother-in-law testified that Mrs. Dobbins had asked to meet with them privately in late
March or early April, 2011, and told them she wanted a divorce. We note appellant’s
sister testified, “The first thing I asked her was has [appellant] ever hit her or the kids,” Stark County, Case No. 2012CA00203 4
and Mrs. Dobbins said no. Appellant’s brother-in-law also testified as a photography
expert and opined that the photos presented by Mrs. Dobbins had been altered.
{¶9} Appellant testified on his own behalf. In reference to the May 18 incident,
he stated he had the iPhone, not his daughter, and Mrs. Dobbins tried to grab it from
him. She kept pulling on his arm and hand but he did not let go; she let go and fell
back, sitting down on a small bed beside the couch. He denied leaping over the couch,
grabbing her, pushing her down, getting on top of her, or tearing her sweater. After the
incident appellant’s friend called on the phone and Mrs. Dobbins told him she wanted a
“quickie divorce.” Appellant stated Mrs. Dobbins was upset with him that night because
he had questioned her earlier about $242,000 she had spent.
{¶10} Appellant was charged with one count of domestic violence pursuant to
R.C. 2919.25(A), a misdemeanor of the first degree. Appellant entered a plea of not
guilty and waived his right to a trial by jury. The case proceeded to bench trial and
appellant was found guilty as charged. The trial court sentenced appellant to a jail term
of 180 days with 147 days suspended, to be served as 3 days in a domestic violence
intervention program and 30 days on electronically monitored house arrest. Appellant
was further ordered to have no contact with the victim and to pay a fine of $500 plus
court costs.
{¶11} Appellant now appeals from the judgment entries of his conviction and
sentence.
{¶12} Appellant raises one assignment of error: Stark County, Case No. 2012CA00203 5
ASSIGNMENT OF ERROR
{¶13} “I. THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
ANALYSIS
I.
{¶14} In his sole assignment of error, appellant contends the judgment of the
trial court is against the manifest weight and sufficiency of the evidence.
{¶15} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.”
{¶16} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the Stark County, Case No. 2012CA00203 6
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 overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶17} Appellant was convicted of one count of domestic violence pursuant to
R.C. 2919.24(A), which states, “No person shall knowingly cause or attempt to cause
physical harm to a family or household member.” Appellant does not challenge
appellee’s evidence on any specific element of the offense; instead, his arguments are
premised upon Mrs. Dobbins’ credibility. It is axiomatic, however, that the weight of the
evidence and the credibility of the witnesses are determined by the trier of fact. State v.
Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216. The trier of fact
is in a better position to observe the witnesses’ demeanor and weigh their credibility.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. This case was tried to the court; in a bench trial, the court is presumed to
know the law and properly apply it. State v. Sarver, 7th Dist. No. 05-CO-53, 2007-Ohio-
601, ¶ 23.
{¶18} We have reviewed the record, including the trial transcript of the
witnesses’ testimony and the photos. Viewing this evidence in a light most favorable to
appellee, we conclude that a reasonable person could have found beyond a reasonable
doubt appellant committed the offense of domestic violence. We find, therefore, that
appellee met its burden of production regarding each element of the crime of domestic Stark County, Case No. 2012CA00203 7
violence and, accordingly, there was sufficient evidence to support appellant's
conviction. Although appellant’s witnesses testified Mrs. Dobbins did not mention
physical violence, she spoke with several of these witnesses before May 18, which she
testified was the first incident of physical violence. As the trial court pointed out, the
photos corroborate a physical incident, and even appellant’s mother agreed she was
shown at least one of the photos on May 21 (although she insisted it was not indicative
of violence). The trier of fact was free to accept or reject any and all of the evidence
offered by the appellant and assess the witnesses’ credibility. We conclude the trier of
fact, in resolving the conflicts in the evidence, did not create a manifest miscarriage of
justice so as to require a new trial.
CONCLUSION
{¶19} Appellant’s sole assignment of error is overruled and the judgment of the
Massillon Municipal Court is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Farmer, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER