State v. Gross

2021 Ohio 2946

• Court: Ohio Court of Appeals
• Decided: August 27, 2021
• Docket: 29022
• Status: Published

Opinion

[Cite as State v. Gross, 2021-Ohio-2946.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29022 : v. : Trial Court Case No. 2020-CRB-1402 : NATHAN K. GROSS : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :

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OPINION

Rendered on the 27th day of August, 2021.

NOLAN C. THOMAS, Atty. Reg. No. 0078255, Prosecuting Attorney, City of Kettering Prosecutor’s Office, 2325 Wilmington Pike, Kettering, Ohio 45420 Attorney for Plaintiff-Appellee

V. GAYLE MILLER, Atty. Reg. No. 0091528, 120 West Second Street, Suite 501, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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HALL, J.

{¶ 1} Nathan K. Gross appeals from his conviction for domestic violence in the

Kettering Municipal Court. He argues that his conviction was against the manifest weight

of the evidence and that his trial counsel was ineffective for not filing a Crim.R. 29 motion

for acquittal. We find no merit in the evidentiary challenge or the ineffective-assistance

claim, so we affirm.

I. Factual and Procedural Background

{¶ 2} In early December 2020, Gross was arrested and charged with one count of

domestic violence, in violation of R.C. 2919.25, a first-degree misdemeanor, for shoving

Renee Benedetti’s head into a wall. A bench trial was held the same month, at which the

following evidence was presented.

{¶ 3} Benedetti testified that she and Gross lived together with their 18-month-old

son in a rented home in Kettering, Ohio. On December 4, 2020, she got home around 6

a.m., woke Gross, and went to bed. That afternoon, around 2 p.m., Benedetti said that

she was asleep in bed when she was awakened by Gross trying to have sex with her.

She tried to push him off. He told her that she smelled and needed to take a shower. They

started arguing. Benedetti’s cell phone rang, and she answered it. Gross told her to hang

up, and when she refused, he punched her in the stomach hard enough to knock her

down. Benedetti took the baby into the bathroom to take a shower. Gross stood in the

doorway, and they continued to argue, making “nasty comments” to each other. (Tr. 15.)

She testified that, when she bent down to undress the baby, Gross shoved her head into

the shower wall. The area near her right temple hit the wall. Gross left, and Benedetti took

a shower. -3-

{¶ 4} She then left the house with the baby, walking away on foot. The two were

picked up by a passerby, who gave them a ride to a nearby motel. Benedetti called the

police, officers met her at the motel, and she told them what had happened. Officer Shiloh

Colon testified that she saw bruising on the right side of Benedetti’s head and took

photographs, which were presented at trial and showed bruising and swelling near

Benedetti’s right temple. Benedetti told Officer Colon that “her head struck the shower on

her right side.” (Tr. 97.) Colon also said that Benedetti complained to her of stomach pain.

Officer Michael Martin also testified that he talked to Benedetti at the motel. He said that

she was “upset,” “crying,” and “very emotional.” (Tr. 115.) She told him that she had been

raped and punched in the stomach.

{¶ 5} Detective Ryan Vandegrift was assigned to investigate. He testified that

Benedetti had told him that she had been raped that morning and that she had her head

smashed into a wall. He said that a Ring camera at the house captured several short

videos of events outside on December 4. One video, taken from 3:45 to 4:00 a.m., showed

Benedetti and Gross walking back and forth from the driveway to the area of the entrance

of their apartment, carrying items into the house. Another, taken around 5:30 or 5:45 p.m.,

showed Benedetti walking from the entrance of the apartment down the driveway toward

the street, wearing a towel around her body and a towel on her head. A final video, taken

around 5:40 or 5:55 p.m., showed Gross walking back up the driveway from the street.

{¶ 6} The person who had called Benedetti earlier was her friend Fred Combs. She

did not hang up the phone, so Combs heard the argument. He testified that Gross

sounded “very irate” and was “yelling and screaming.” (Tr. 105-106, 109.) Combs could

hear that Benedetti was crying and heard Gross say things to her like, “[y]ou stupid fucking -4-

bitch” and “[y]ou’re a fucking whore.” (Tr. 108-109.)

{¶ 7} Gross took the stand in his own defense and painted a very different picture

of the events. He denied hurting Benedetti. Gross said that Benedetti had been gone for

several days and that he had been caring for the baby. She came into the house around

3:30 a.m., woke him, and told him to help her bring in from the car things she had bought.

Benedetti climbed into bed fully clothed and left Gross to finish the unloading. Gross said

that around 6:30 a.m., he woke Benedetti and they had consensual sex until the baby

woke up. Gross got up with the baby, and Benedetti stayed in bed. According to Gross,

Benedetti got up between 4 and 4:30 p.m. that afternoon. At some point, he told her that

her hair smelled and they argued. Gross said that she hit him in the head with her cell

phone, and he presented photos that he said showed injuries she had caused. Gross

called 911 but hung up before making a report. He also said that he did not punch

Benedetti in the stomach but pushed her away and that she stumbled and fell. Gross said

that around 5:30 p.m. he went out to buy cigarettes, while Benedetti took a shower. Gross

also testified that, while Benedetti was on the phone with Combs, she was merely acting

like he was attacking her, when he was actually in another room. Gross said that he did

not know how she got the bruise on her head.

{¶ 8} The trial court noted the two very different versions of the events in

Benedetti’s and Gross’s testimony. Because Benedetti’s version was corroborated by

other evidence, though, the court found Gross guilty. The court sentenced Gross to 180

days in jail, suspending 90 days and giving him credit for 25 days served.

{¶ 9} Gross appeals.

II. Analysis -5-

{¶ 10} Gross presents two assignments of error.

A. Weight of the evidence

{¶ 11} The first assignment of error alleges:

THE CONVICTION FOR DOMESTIC VIOLENCE WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 12} Gross and Benedetti presented differing versions of the events. Gross

argues that his version was more credible.

{¶ 13} “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.” 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 [factfinder] clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. The discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.’ ” State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “Typically, in manifest weight review,

we defer to trial court decisions on credibility issues, as those courts are in the best

position to make that determination.” State v. Curtis, 2020-Ohio-4152, 157 N.E.3d 879,

¶ 20 (2d Dist.), citing State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684,

*4 (Aug. 22, 1997).

{¶ 14} Gross was found guilty of violating R.C. 2919.25(A), which provides that -6-

“[n]o person shall knowingly cause or attempt to cause physical harm to a family or

household member.”

{¶ 15} Gross argues that his story was more credible than Benedetti’s. He points

out that the testimony of Benedetti totally contrasted with that of Gross, as well as that of

the video evidence. Benedetti testified that she arrived home around 6:00 a.m., but the

video evidence testified to by Detective Vandegrift indicated that she was on the premises

around 3:45 a.m. Further, Benedetti testified that she showered in the morning after their

child awoke, but the testimony of Vandegrift on the video evidence was that Benedetti

had been outside of the house wearing a towel on her body and another on her head at

5:45 p.m., which was consistent with Gross’s testimony that Benedetti showered while he

was at the store. Benedetti testified that, while she was in the bathroom, Gross slammed

her head into the shower wall, contrary to Gross’s testimony. Based on the conflicting

testimony, Gross says, it was against the manifest weight of the evidence for the trial

court to conclude that he had any interaction with Benedetti while she was showering.

{¶ 16} “[R]esolution of evidentiary conflicts is the province of the trial court.” State

v. Chatman, 2d Dist. Montgomery No. 20595, 2005-Ohio-1930, ¶ 23. The trial court here

plainly believed Benedetti over Gross. Benedetti testified that, during an argument, Gross

punched her in the stomach and then smashed the right side of her head into the shower

wall. Her testimony was consistent with the bruising and swelling that was seen and

photographed on her right temple. It was also supported by Fred Combs’s testimony that

he listened to Gross yell and scream at Benedetti.

{¶ 17} While there were conflicts in the evidence, we do not think that this is an

“exceptional case in which the evidence weighs heavily against the conviction.” -7-

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Benedetti’s version of events was

plausible and supported by the other evidence. We are not convinced that the trial court

lost its way by crediting it. Gross’s conviction was not against the manifest weight of the

evidence.

{¶ 18} The first assignment of error is overruled.

B. Ineffective assistance of counsel

{¶ 19} The second assignment of error alleges:

THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE

FEDERAL CONSTITUTION AND ARTICLE 1 § 10 OF THE OHIO

CONSTITUTION DUE TO FAILURE OF THE DEFENSE COUNSEL TO

MOVE FOR JUDGMENT OF ACQUITTAL PURSUANT TO CRIM.R. 29.

{¶ 20} In this assignment of error, Gross argues that defense counsel was

ineffective for failing to file a Crim.R. 29 motion for acquittal at the end of the State’s case

and/or at the end of the defense’s own case and that he was prejudiced by the resulting

verdict.

{¶ 21} “To prevail on a Sixth Amendment claim alleging ineffective assistance of

counsel, a defendant must show that his counsel’s performance was deficient and that

his counsel’s deficient performance prejudiced him.” Andrus v. Texas, __ U.S. __, 140

S.Ct. 1875, 1881, 207 L.Ed.2d 335 (2020), citing Strickland v. Washington, 466 U.S. 668,

688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Clinton, 153 Ohio St.3d 422,

2017-Ohio-9423, 108 N.E.3d 1, ¶ 41.

{¶ 22} Even if defense counsel had moved for an acquittal under Crim.R. 29, it -8-

would not have changed the outcome. As we have explained,

“Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that

is, a finding that a conviction is supported by the manifest weight of the

evidence necessarily includes a finding of sufficiency.” (Citations

omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-

3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501, ¶ 58

(2d Dist.). Consequently, “a determination that a conviction is supported by

the weight of the evidence will also be dispositive of the issue of sufficiency.”

(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725,

2005-Ohio-2198, ¶ 15.

Curtis, 2020-Ohio-4152, 157 N.E.3d 879, at ¶ 44. “Because we have already concluded

that the conviction was not against the manifest weight of the evidence, a motion arguing

sufficiency could not possibly have been successful. As a result, trial counsel did not

render ineffective assistance of counsel by failing to make such a motion.” Id. at ¶ 45.

{¶ 23} The second assignment of error is overruled.

III. Conclusion

{¶ 24} We have overruled both of the assignments of error presented. The trial

court's judgment is affirmed.

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DONOVAN, J. and WELBAUM, J., concur. -9-

Copies sent to:

Nolan C. Thomas V. Gayle Miller Hon. James F. Long