State v. Howell

2017 Ohio 728

• Court: Ohio Court of Appeals
• Decided: February 28, 2017
• Docket: 15 MA 00034
• Status: Published

Opinion

[Cite as State v. Howell, 2017-Ohio-728.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 MA 0034 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) ANTHONY HOWELL ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 15 CRB 28

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Dana Lantz Youngstown City Prosecutor Atty. Jeffrey Moliterno Assistant City Prosecutor 26 S. Phelps Street Youngstown, Ohio 44503

For Defendant-Appellant: Atty. John A. Ams 134 Westchester Drive Youngstown, Ohio 44515

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: February 28, 2017 [Cite as State v. Howell, 2017-Ohio-728.] WAITE, J.

{¶1} Appellant Anthony Howell appeals a February 24, 2015 Youngstown

Municipal Court judgment entry in which he was found guilty of domestic violence

and criminal damaging. Appellant solely appeals his domestic violence conviction.

Appellant contends that his conviction is not supported by sufficient evidence and is

against the manifest weight of the evidence. For the reasons provided, Appellant’s

arguments are without merit and the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} On January 10, 2015, the victim drove her two children to their uncle’s

house. Shortly after she parked her car, Appellant, who is the father of the children,

arrived at the house. Appellant saw the victim and confronted her. They began to

argue and, at some point, the victim retrieved a baseball bat from her trunk to “scare”

Appellant. They struggled over control of the bat. During the struggle, Appellant let

go of the bat and it struck the victim in the face, causing an injury to her lip. The

victim dropped the bat and walked back to her car, which was still running.

{¶3} Because the driver’s side door was broken, she entered through the

passenger side door, intending to slide to the driver’s seat. The two children

remained in the backseat of the vehicle. While the victim was inside the car and in

the process of heading to the driver’s side seat, Appellant picked up the bat and

smashed the driver’s side window. The glass shattered and fell on the seat and on

one of the children, but did not reach the victim. Appellant was charged with

domestic violence, a misdemeanor of the first degree in violation of R.C. 2919.25(A) -2-

and criminal damaging, a misdemeanor in the second degree, in violation of R.C.

2909.06(A)(1).

{¶4} On January 12, 2015, Appellant was arraigned and pleaded not guilty to

both charges. On February 24, 2015, a bench trial was held. Appellant was found

guilty of both charges. We note that the trial court determined that insufficient

evidence was present to find Appellant guilty of domestic violence for the injury to the

victim’s lip, but found there was sufficient evidence that he smashed the window

while she was inside the car to sustain a conviction. The trial court imposed the

following sentence: 80 hours of community service, anger management counseling,

financial sanctions, and three years of intensive probation. Appellant timely appeals

only his domestic violence conviction.

ASSIGNMENT OF ERROR NO. 1

APPELLANT'S DOMESTIC VIOLENCE CONVICTION IS NOT

SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.

{¶5} Sufficiency of the evidence is a legal question dealing with adequacy.

State v. Pepin–McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476,

¶ 49 (7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). “Sufficiency is a term of art meaning that legal standard which is applied to

determine whether a case may go to the jury or whether evidence is legally sufficient

to support the jury verdict as a matter of law.” State v. Draper, 7th Dist. No. 07 JE

45, 2009-Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d

148 (1955). To discharge the state’s burden when prosecuting a criminal offence, -3-

“probative evidence must be offered” on “every material element which is necessary

to constitute the crime.” State v. Billman, 7th Dist. Nos. 12 MO 3, 12 MO 5, 2013-

Ohio-5774, ¶ 8, citing State v. Martin, 164 Ohio St. 54, 57, 128 N.E.2d 7 (1955). In a

sufficiency review, a reviewing court does not determine “whether the state's

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Rucci, 7th Dist. No. 13 MA 34, 2015-Ohio-1882,

¶ 14, citing State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468, ¶ 34.

{¶6} Appellant argues that the victim initiated the incident when she retrieved

a baseball bat from her trunk and swung it at him. While he concedes that he struck

the driver’s side window of the victim’s car with the bat, he argues that since none of

the shattered glass actually struck her, she suffered no physical harm. He also notes

that the victim caused her own injuries to her lip.

{¶7} In response, the state points out that it was only required to show that

Appellant attempted to cause physical harm. The state cites to two cases which

upheld convictions of felonious assault that were based on the breaking of glass and

argues that these cases demonstrate the inherent danger of broken glass. As

Appellant admittedly smashed the glass window of the victim’s car knowing she was

inside, the state argues that there was sufficient evidence presented to show that he

attempted to cause physical harm to the victim.

{¶8} Pursuant to R.C. 2919.25(A), “[n]o person shall knowingly cause or

attempt to cause physical harm to a family or household member.” Pursuant to R.C.

2923.02(A), an attempt involves “conduct that, if successful, would constitute or result -4-

in the offense.” According to R.C. 2901.01(A)(3), physical harm “means any injury,

illness, or other physiological impairment, regardless of its gravity or duration.”

Appellant is not contesting that the victim is a family or household member. He solely

contests whether he caused her physical harm.

{¶9} The incident began when the victim arrived at the house with the

children. Appellant and the victim began arguing and the victim retrieved a baseball

bat from her trunk in order to “scare” Appellant. A fight ensued over the bat that

resulted in an injury to the victim’s lip; however, the trial court ruled there was

insufficient evidence to support a domestic violence charge for this injury. After the

bat hit the victim, she dropped it on the ground and entered her car, which was still

running. As her driver’s side door was broken, she entered through the passenger

door. While she was inside and heading to the driver’s seat, Appellant struck the

driver’s side window with the bat, causing the glass to shatter and fall onto the lap of

one of the children. While the glass did not reach the victim, the trial court found that

Appellant’s actions in striking the window knowing that she was inside was sufficient

to find him guilty of domestic violence.

{¶10} While the victim was not physically harmed as a result of Appellant’s

actions, “[o]ne does not have to cause serious injury to be guilty of domestic violence;

defendant may be found guilty of domestic violence even if the victim sustains only

minor injuries, or sustains no injury at all.” State v. Kartman, 7th Dist. No. 01 BA 65,

2002-Ohio-5189, ¶ 9, citing State v. Blonski, 125 Ohio App.3d 103, 707 N.E.2d 1168

(9th Dist.1997). Thus, the fact that the victim was not physically harmed is irrelevant. -5-

{¶11} The question is whether Appellant’s action in striking the window with

the bat while the victim was inside the car constitutes an attempt to cause physical

harm. In a Sixth District case, the appellant and the victim argued and the appellant

was asked to leave the house. State v. McClellan, 6th Dist. No. OT-95-057, 1996 WL

238765, *1 (May 10, 1996). As the appellant left, he turned and punched a door,

striking and shattering the door’s glass window. The broken glass did not strike the

victim, but it did strike their child. Id. at *2. The Sixth District upheld the domestic

violence conviction and found it was irrelevant whether the appellant could have

anticipated the degree of a potential injury because he was generally aware that it

was more likely than not that his actions would cause an injury. Id., citing State v.

Sowell, 39 Ohio St.3d 322, 530 N.E.2d 1294 (1988). This holding falls in line with the

established principle that a person who exposes another to danger is presumed to

know the consequences of their actions. State v. Davis, 7th Dist. No. 08 MA 236,

2011-Ohio-292, ¶ 186, State v. Thompson, 55 Ohio App.2d 17, 23, 379 N.E.2d 245

(5th Dist.1977).

{¶12} Importantly, Appellant knew the victim was inside the car and heading

to the driver’s seat when he swung the bat at the driver’s side window. He also knew

that a car is an enclosed space and there was a significant possibility that shattering

glass may strike someone. A person using the level of force adequate to break the

glass of a car window would likely understand the risk of injury. As such, this record

reflects sufficient evidence that Appellant attempted to cause the victim physical

harm. -6-

{¶13} Accordingly, Appellant’s first assignment of error is without merit and is

overruled.

ASSIGNMENT OF ERROR NO. 2

APPELLANT'S DOMESTIC VIOLENCE CONVICTION IS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶14} Appellant argues that the victim admitted during her testimony she lied

to the responding officers and that she caused her own lip injury. Appellant notes

that the victim also admitted that she initiated the altercation when she retrieved the

bat from her trunk. Furthermore, Appellant urges that as the victim was untouched

by the glass there is no evidence that she was placed at risk of an injury. The state

responds by reasserting its argument submitted under the first assignment of error.

{¶15} While a sufficiency of the evidence review focuses on the prosecution's

burden of production, a manifest weight of the evidence review centers on the

prosecution's burden of persuasion. Merritt at ¶ 34. An appellate court “weighs the

evidence and all reasonable inferences, considers the 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

reversed and a new trial ordered.” Thompkins, supra, at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶16} A reversal should only be granted “in the exceptional case in which the

evidence weighs heavily against the conviction.” State v. Andric, 7th Dist. No. 06 CO

28, 2007-Ohio-6701, ¶ 19, citing Martin at 175. A reviewing court should not reverse -7-

a judgment as against the manifest weight of the evidence in a bench trial where the

trial court could reasonably conclude from substantial evidence that the state has

proved the offense beyond a reasonable doubt. Andric at ¶ 19, citing State v.

Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988).

{¶17} Only two witnesses testified in this matter, the victim and the

responding officer. While the victim admitted that she lied about the cause of her lip

injury to the police, other evidence supports the trial court’s verdict. As previously

discussed, Appellant admitted that he smashed the vehicle’s window with the bat. It

is uncontroverted that the victim was inside the vehicle at the time. The responding

officer, Officer Christopher Staley, testified that the driver’s side window was

shattered and there was broken glass both outside and inside the vehicle.

Importantly, we note that the trial court expressly stated within its judgment entry that

it “considered the evidence and assessed the credibility of the witnesses.” (2/24/15

J.E.) There is competent and credible evidence to support the trial court’s verdict,

and so Appellant’s conviction is not against the manifest weight of the evidence.

Appellant’s second assignment of error is without merit and is overruled.

Conclusion

{¶18} Appellant contends that his conviction is not supported by sufficient

evidence and is against the manifest weight of the evidence. However, the record

provides sufficient, competent and credible evidence to support Appellant’s

conviction. Accordingly, Appellant’s arguments are without merit and the judgment of

the trial court is affirmed. -8-

Donofrio, J., concurs.

DeGenaro, J., concurs.