[Cite as State v. Dzekunskas, 2024-Ohio-2287.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2023-CA-69 : v. : Trial Court Case No. 23 CRB 00869 : BRANDON JOSEPH DZEKUNSKAS : (Criminal Appeal from Municipal Court) : Appellant : :
...........
OPINION
Rendered on June 14, 2024
ADAM JAMES STOUT, Attorney for Appellant
DANIELLE E. SOLLARS, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Brandon Joseph Dzekunskas appeals from a judgment
of the Xenia Municipal Court convicting him of one count of domestic violence following
a bench trial. For the following reasons, we will affirm the judgment of the trial court.
I. Facts and Course of Proceedings -2-
{¶ 2} On July 14, 2023, Dzekunskas was involved in an incident with Autumn
Moore, his mother, at an apartment on Smith Avenue in Xenia, where they both lived.
Ultimately, Dzekunskas was arrested and charged with one count of domestic violence,
a first-degree misdemeanor in violation of R.C. 2919.25(A), and one count of assault, a
first-degree misdemeanor in violation of R.C. 2903.13(A).
{¶ 3} A bench trial was held in Xenia Municipal Court on October 11, 2023.
Autumn Moore testified first. Tr. 3-11. She stated that her son had lived with her at an
apartment on Smith Avenue in Xenia from September 2022 through the date on which he
was arrested. There recently had been tension between the two of them, and
Dzekunskas was exhibiting erratic behavior On July 14, 2023, she and Dzekunskas
were arguing. He followed her to her bedroom, pushed her onto her bed, hit her with a
closed fist, and grabbed her briefly around her neck. He then left the room and called
the police. Moore sat on the porch and Dzekunskas waited on the sidewalk until the
police arrived. On cross-examination, Moore testified that she is fair-complected and her
skin becomes flush when she is stressed. She denied drinking the night of the incident
with her son.
{¶ 4} Alexandria Grace Mumpower, a Xenia police officer, testified next. Id. at 11-
24. She had been dispatched to Moore’s residence on July 14, 2023, in response to a
call from Dzekunskas, who claimed that he was arguing with his mother over her drinking
and her possible violation of probation. Officer Mumpower testified that when she arrived
at the residence, Moore “seemed sad, shaken up, teary.” Id. at 13. Officer Mumpower
agreed that Moore appeared to still be under the stress of whatever event had occurred. -3-
Officer Mumpower then testified to the following interaction she had with Moore:
So she explained to me that her and her son had been arguing. She
was frustrated that he wasn’t holding up his own household responsibilities,
things of that nature. And I noticed that her neck was red in a way that
looked like - - so I asked her about the redness on her neck. Specifically,
you know, how did that happen. Initially she said well, I didn’t do it myself.
So I asked more questions. I don’t remember what those specific
questions were, but then eventually she felt comfortable speaking with me
and telling me what happened, that her son had struck her and strangled
her.
Id. at 14-15.
{¶ 5} Officer Mumpower also testified that the redness was localized on different
spots on Moore’s neck and there was a darker red color around her throat. She did not
observe any petechiae in Moore’s eyes or thumbprints on her neck. Further, she did not
observe any drug use by Moore and did not recall Moore being intoxicated.
{¶ 6} Dzekunskas testified last at the trial. Id. at 25-27. Although he was in jail
much of the three months immediately preceding the trial, he previously had resided with
Moore at an apartment on Smith Avenue in Xenia. He had been diagnosed as
schizoaffected. He called the police on July 14, 2023, because his mother was
harassing him, and he felt he was in danger. According to Dzekunskas, he believed
Moore had been drinking based on the text messages she had sent to him and the empty
bottles in the house. He testified that he did not put his hands on her. -4-
{¶ 7} The trial court found Dzekunskas guilty of one count of domestic violence, a
first-degree misdemeanor. The court dismissed the one count of assault. The court
sentenced Dzekunskas to 180 days in jail, giving him credit for time served and
suspending the final 80 days of the jail-sentence. Dzekunskas also was ordered to pay
a $250 fine and court costs and to undergo drug and alcohol, anger management, and
mental health assessments. The court placed Dzekunskas on probation for two years.
{¶ 8} Dzekunskas filed a timely notice of appeal from the trial court’s judgment.
II. Dzekunskas’ Conviction Was Not Against the Manifest Weight of the Evidence
{¶ 9} Dzekunskas’ sole assignment of error states:
Defendant’s Conviction Under [R.C.] 2919.25 was Against the
Manifest Weight of the Evidence.
{¶ 10} In his assignment of error, Dzekunskas contends that the trier of fact lost its
way in finding that he had assaulted his Mother “because the facts testified to by [his
Mother] ultimately [were] contradicted by evidence introduced by Defense counsel.”
Appellant’s Brief, p. 7. In particular, Dzekunskas argues that the redness on Moore’s
neck could have been simply due to her fair complexion and stress rather than to any
attempt by Dzekunskas to strangle her. Further, Dzekunskas notes that Officer
Mumpower did not recall any signs of petechiae in Moore’s eyes or thumbprints on her
neck, which can be signs of strangulation. Id.
{¶ 11} “[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 -5-
believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 12. “The court, reviewing 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 [trier of fact] clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). The fact that the evidence is subject to different interpretations on
the matter of guilt or innocence does not render a conviction against the manifest weight
of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being
against the manifest weight of the evidence only in exceptional circumstances in which
the evidence weighs heavily against the conviction. Martin at 175.
{¶ 12} Dzekunskas was convicted of one count of domestic violence 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.” The evidence was undisputed
at trial that Moore is Dzekunskas’ mother and that they lived together on July 14, 2023.
Further, Moore testified that Dzekunskas pushed her onto her bed, hit her with a closed
fist, and briefly grabbed her around the neck. Officer Mumpower testified that she saw
dark red marks around Moore’s neck and that Moore told her that Dzekunskas had struck
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Dzekunskas, 2024-Ohio-2287.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Appellee : C.A. No. 2023-CA-69 : v. : Trial Court Case No. 23 CRB 00869 : BRANDON JOSEPH DZEKUNSKAS : (Criminal Appeal from Municipal Court) : Appellant : :
...........
OPINION
Rendered on June 14, 2024
ADAM JAMES STOUT, Attorney for Appellant
DANIELLE E. SOLLARS, Attorney for Appellee
.............
LEWIS, J.
{¶ 1} Defendant-Appellant Brandon Joseph Dzekunskas appeals from a judgment
of the Xenia Municipal Court convicting him of one count of domestic violence following
a bench trial. For the following reasons, we will affirm the judgment of the trial court.
I. Facts and Course of Proceedings -2-
{¶ 2} On July 14, 2023, Dzekunskas was involved in an incident with Autumn
Moore, his mother, at an apartment on Smith Avenue in Xenia, where they both lived.
Ultimately, Dzekunskas was arrested and charged with one count of domestic violence,
a first-degree misdemeanor in violation of R.C. 2919.25(A), and one count of assault, a
first-degree misdemeanor in violation of R.C. 2903.13(A).
{¶ 3} A bench trial was held in Xenia Municipal Court on October 11, 2023.
Autumn Moore testified first. Tr. 3-11. She stated that her son had lived with her at an
apartment on Smith Avenue in Xenia from September 2022 through the date on which he
was arrested. There recently had been tension between the two of them, and
Dzekunskas was exhibiting erratic behavior On July 14, 2023, she and Dzekunskas
were arguing. He followed her to her bedroom, pushed her onto her bed, hit her with a
closed fist, and grabbed her briefly around her neck. He then left the room and called
the police. Moore sat on the porch and Dzekunskas waited on the sidewalk until the
police arrived. On cross-examination, Moore testified that she is fair-complected and her
skin becomes flush when she is stressed. She denied drinking the night of the incident
with her son.
{¶ 4} Alexandria Grace Mumpower, a Xenia police officer, testified next. Id. at 11-
24. She had been dispatched to Moore’s residence on July 14, 2023, in response to a
call from Dzekunskas, who claimed that he was arguing with his mother over her drinking
and her possible violation of probation. Officer Mumpower testified that when she arrived
at the residence, Moore “seemed sad, shaken up, teary.” Id. at 13. Officer Mumpower
agreed that Moore appeared to still be under the stress of whatever event had occurred. -3-
Officer Mumpower then testified to the following interaction she had with Moore:
So she explained to me that her and her son had been arguing. She
was frustrated that he wasn’t holding up his own household responsibilities,
things of that nature. And I noticed that her neck was red in a way that
looked like - - so I asked her about the redness on her neck. Specifically,
you know, how did that happen. Initially she said well, I didn’t do it myself.
So I asked more questions. I don’t remember what those specific
questions were, but then eventually she felt comfortable speaking with me
and telling me what happened, that her son had struck her and strangled
her.
Id. at 14-15.
{¶ 5} Officer Mumpower also testified that the redness was localized on different
spots on Moore’s neck and there was a darker red color around her throat. She did not
observe any petechiae in Moore’s eyes or thumbprints on her neck. Further, she did not
observe any drug use by Moore and did not recall Moore being intoxicated.
{¶ 6} Dzekunskas testified last at the trial. Id. at 25-27. Although he was in jail
much of the three months immediately preceding the trial, he previously had resided with
Moore at an apartment on Smith Avenue in Xenia. He had been diagnosed as
schizoaffected. He called the police on July 14, 2023, because his mother was
harassing him, and he felt he was in danger. According to Dzekunskas, he believed
Moore had been drinking based on the text messages she had sent to him and the empty
bottles in the house. He testified that he did not put his hands on her. -4-
{¶ 7} The trial court found Dzekunskas guilty of one count of domestic violence, a
first-degree misdemeanor. The court dismissed the one count of assault. The court
sentenced Dzekunskas to 180 days in jail, giving him credit for time served and
suspending the final 80 days of the jail-sentence. Dzekunskas also was ordered to pay
a $250 fine and court costs and to undergo drug and alcohol, anger management, and
mental health assessments. The court placed Dzekunskas on probation for two years.
{¶ 8} Dzekunskas filed a timely notice of appeal from the trial court’s judgment.
II. Dzekunskas’ Conviction Was Not Against the Manifest Weight of the Evidence
{¶ 9} Dzekunskas’ sole assignment of error states:
Defendant’s Conviction Under [R.C.] 2919.25 was Against the
Manifest Weight of the Evidence.
{¶ 10} In his assignment of error, Dzekunskas contends that the trier of fact lost its
way in finding that he had assaulted his Mother “because the facts testified to by [his
Mother] ultimately [were] contradicted by evidence introduced by Defense counsel.”
Appellant’s Brief, p. 7. In particular, Dzekunskas argues that the redness on Moore’s
neck could have been simply due to her fair complexion and stress rather than to any
attempt by Dzekunskas to strangle her. Further, Dzekunskas notes that Officer
Mumpower did not recall any signs of petechiae in Moore’s eyes or thumbprints on her
neck, which can be signs of strangulation. Id.
{¶ 11} “[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 -5-
believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 12. “The court, reviewing 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 [trier of fact] clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). The fact that the evidence is subject to different interpretations on
the matter of guilt or innocence does not render a conviction against the manifest weight
of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being
against the manifest weight of the evidence only in exceptional circumstances in which
the evidence weighs heavily against the conviction. Martin at 175.
{¶ 12} Dzekunskas was convicted of one count of domestic violence 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.” The evidence was undisputed
at trial that Moore is Dzekunskas’ mother and that they lived together on July 14, 2023.
Further, Moore testified that Dzekunskas pushed her onto her bed, hit her with a closed
fist, and briefly grabbed her around the neck. Officer Mumpower testified that she saw
dark red marks around Moore’s neck and that Moore told her that Dzekunskas had struck
her with a closed fist and briefly put his hands around her neck. Although Dzekunskas
testified that he did not put his hands on Moore, the trial court clearly believed the
testimony of Moore and Officer Mumpower over Dzekunskas. There is nothing in the
record that leads us to believe the trial court clearly lost its way in doing so. Further, -6-
Dzekunskas’ attempt to overturn his conviction on appeal by pointing out that Moore’s
complexion is susceptible to redness when she is stressed does not weigh heavily against
the conviction. The fact that the evidence is subject to different interpretations on the
matter of guilt or innocence does not render his conviction against the manifest weight of
the evidence.
{¶ 13} On this record, we cannot conclude that this is one of the exceptional
circumstances in which the evidence weighs heavily against the conviction. Therefore,
Dzekunskas’ conviction is not against the manifest weight of the evidence. The sole
assignment of error is overruled.
III. Conclusion
{¶ 14} Having overruled the assignment of error, we will affirm the judgment of the
trial court.
EPLEY, P.J. and TUCKER, J., concur.