State v. Kamholz

2024 Ohio 865

• Court: Ohio Court of Appeals
• Decided: March 8, 2024
• Docket: E-23-002
• Status: Published

Opinion

[Cite as State v. Kamholz, 2024-Ohio-865.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

State of Ohio/City of Vermillion Court of Appeals No. E-23-002

Appellee Trial Court No. CRB02200040

v.

Ricky J. Kamholz DECISION AND JUDGMENT

Appellant Decided: March 8, 2024

*****

Wayne R. Nichol, for Appellee.

Russell V. Leffler, for appellant.

***** OSOWIK, J.

{¶ 1} This is an appeal from a November 4, 2022 judgment of the Vermillion

Municipal Court, convicting appellant on one count of domestic violence, in violation of

R.C. 2919.25, a misdemeanor of the first degree. On December 13, 2022, appellant was

sentenced to 180 days in jail, with 175 days suspended, and a 90-day period of electronic

monitoring. For the reasons set forth below, this court affirms the judgment of the trial

court. {¶ 2} Appellant, Ricky Kamholz, sets forth the following two assignments of

error:

“I. The conviction for domestic violence was against the manifest weight of the

evidence [].

“II. It was error for the court to exclude from evidence the testimony of the

neighbor as to what the alleged victim told the neighbor because it was not being

introduced for the truth of the matter asserted.”

{¶ 3} The following undisputed facts are relevant to this appeal. The context of

this case centers upon the strained relationship between appellant and his wife, the victim

in this case. Appellant had recently been terminated from a position that he had held for

many years in the automotive industry. Appellant then obtained employment in the retail

sector, with considerably lower compensation. This caused stressful financial challenges

in the household. In addition, appellant became concerned that the victim was attempting

to reconnect with a former significant other. The record shows that the parties began to

quarrel with increasing frequency and intensity.

{¶ 4} The parties resided in a marital home in Vermillion, along with their four-

year-old daughter, as well as the victim’s older daughter from a prior relationship.

Appellant, by his own admission, would regularly, forcefully convey to the victim his

perception that she was not keeping their home adequately clean and orderly, nor did he

approve of how she did the household laundry. The record shows that both parties are

employed outside of the home.

2. {¶ 5} On February 28, 2022, the victim got her older daughter prepared for the day

and onto the school bus. After returning inside to begin getting their younger daughter up

and ready for the day, appellant began yelling about their troubled finances, and he

reiterated his disgruntlement that the victim did not adequately perform household

chores. In response to the outburst, the victim sought refuge inside of the bathroom.

Shortly thereafter, the parties’ four-year-old daughter joined her mother inside of the

bathroom and locked the door behind her.

{¶ 6} Appellant remained in the hallway outside of the locked bathroom and

continued yelling at the victim. The victim then began recording the incident on her

mobile phone. The recording was shown during the jury trial in this case. While

appellant claims upon appeal that he urgently needed to urinate, and that his actions

during the incident were driven by that personal discomfort, the recording contains no

such reference. Ultimately, appellant forced open the door, which then struck the victim,

pushed her into the wall, and knocked her mobile phone out of her hand, ending the

recording.

{¶ 7} Shortly after the incident, appellant demanded that the victim drive him to

work. Prior to the incident, appellant had contacted his employer and indicated that he

felt unable to come into work that day. However, appellant was advised by his

supervisor that if he did not appear for work that day, there would be disciplinary

consequences.

3. {¶ 8} After dropping appellant off at his workplace in Sheffield Village, Ohio, the

victim then drove herself to Mercy Hospital in Lorain seeking medical treatment for that

morning’s incident with appellant. She was diagnosed with right arm muscular strain and

pain, her arm was placed in a sling, and she was advised to seek follow-up care. In

addition, the Mercy security officer notified the Vermillion Police Department of the

incident so that a police investigation would occur. Following the investigation,

appellant was charged with one count of domestic violence, in violation of R.C. 2919.25,

a misdemeanor of the first degree.

{¶ 9} On November 4, 2022, the case proceeded to jury trial. At the conclusion of

the jury trial, appellant was convicted and sentenced to 180 days in jail, with 175 days

suspended. This appeal ensued.

{¶ 10} In the first assignment of error, appellant argues that the domestic violence

conviction was against the manifest weight of the evidence. We do not concur.

{¶ 11} As held by this court in City of Toledo v. Mariucci, 6th Dist. Lucas No. L-

23-1033, 2023-Ohio-4795, ¶ 33,

When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether the

factfinder clearly lost its way in resolving evidentiary conflicts so as to

create such a manifest miscarriage of justice that the conviction must be

reversed in a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 678

4. N.E.2d 541 (1997) * * * [W]e sit as a thirteenth juror and scrutinize the

factfinder’s resolution of the conflicting testimony. State v. Robinson, 6th

Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at

388. Reversal on manifest weight grounds is reserved for the exceptional

case in which the evidence weighs heavily against the conviction.

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3 172, 485 N.E.2d

717 (1st Dist. 1983).

{¶ 12} The trial transcripts show that appellee first presented the testimony of the

victim. The victim testified in detail regarding appellant’s outburst that morning,

centered upon his dissatisfaction with how the home was being maintained by the victim.

The victim explained that, as she had similarly done in response to past commotions from

appellant, she took refuge inside of the bathroom. The victim next testified that their

four-year-old daughter then joined her inside of the bathroom, and locked the door.

{¶ 13} The victim explained that, at this juncture, she began to record the incident

on her mobile phone. The recording was then played for the court. It showed the victim

and their daughter inside of the bathroom, both crying, while also capturing audio of

appellant screaming at the victim from outside of the door about the above-discussed

household complaints. The recording terminates upon appellant forcing open the door,

which strikes the victim, pushes her against the bathroom wall, and knocks her mobile

phone out of her hand, at which point the recording terminates.

5. {¶ 14} Upon rigorous cross-examination, the victim acknowledged that the x-rays

subsequently taken of her at the hospital reflected that she suffered no fracture or

dislocation of her right arm. However, she steadfastly disputed the assertion that this

finding should be construed as showing that she was uninjured, particularly given the

hospital records which document that she was diagnosed with right arm muscular pain

and strain, had her right arm placed in a protective sling by the medical provider, and was

advised to seek follow up care.

{¶ 15} Appellee next presented the testimony of Charles Falkiewicz

(“Falkiewicz”), the physician’s assistant who treated the victim at Mercy Hospital in

Lorain. Falkiewicz testified that the victim sought treatment after she suffered right arm

injury during a domestic incident with her spouse. As a result of the injury, he placed her

right arm in a sling for protection and recovery purposes. Falkiewicz further testified

that, following his examination of the victim, his medical impressions were that she had

sustained upper right arm muscle strain, causing her to experience right arm pain.

{¶ 16} Appellee next presented the testimony of Officer David Wood (“Wood”) of

the Vermillion Police Department, the investigating officer in this case. Wood testified

that while on duty on February 28, 2022, he was advised by dispatch that a Vermillion

resident had just been treated at Mercy Hospital in Lorain for an injury that was incurred

in a domestic incident. Wood testified that the victim reported to him in person later that

day, discussed the incident, and drafted a statement detailing the incident. Wood relayed

that the victim stated that appellant had forced open the bathroom door, which then struck

6. her, and pushed her into the bathroom wall. Wood next reviewed his body cam footage

of his interview with the victim. The footage showed the victim emailing Wood her

mobile phone recording of the incident. Wood testified that the victim was emotional

and upset. In addition, he noted that her right arm was in a sling, with the hospital band

visible on her wrist. Wood then presented photographs that he had taken of the victim

and her right arm.

{¶ 17} Wood testified that when he met with appellant on March 2, 2022,

appellant declined to provide a written statement. However, appellant agreed to verbally

discuss the incident. Wood described how appellant attributed blame for the incident

upon the victim for not properly performing household chores. Wood testified that upon

completing his investigation he determined that the evidence supported charging

appellant with domestic violence.

{¶ 18} Appellant next testified to the trial court on his own behalf. Appellant

acknowledged that prior to this incident, he had been, “bickering for some time” with the

victim. Appellant testified that he was disgruntled and agitated as he perceived their

house to be, “Filthy. Cluttered.” In addition, appellant testified that he perceived that the

victim had, “an old boyfriend pursuing her.”

{¶ 19} Appellant next testified that he had been experiencing stress related to

having recently been terminated from a well-paid position with an automotive

manufacturing company. Appellant conceded that his termination stemmed from his

violations of workplace health and safety regulations with which he disagreed.

7. {¶ 20} Regarding the events of February 28, 2022, appellant testified, “With

everything that was going on, with the arguing and the bickering * * * I didn’t feel that I

could go to work and do my job that day. I was too stressed. But my boss sent me a

message [saying] that I needed to be there.”

{¶ 21} Appellant next gave unsupported testimony of suffering from an enlarged

prostate. In conjunction, appellant next stated, “I was pretty tense and I really had to go

[urinate] bad[ly] * * * I opened the [bathroom] door and I felt resistance [from the

victim] * * * I mean I was halfway through the door and she started yelling, ‘stop it.’ But

at that point, I was pretty much about going * * * I tried to squeeze through as best I

could without the door pushing into her.” Lastly, appellant claimed to have not observed

the door striking the victim because, “I was focused on trying to get to the toilet quick.”

{¶ 22} Appellant next presented the testimony of Denise Danser, a long-time

neighbor and friend of appellant in Vermillion. When asked, “Are you familiar with the

events of February 28, 2022?”, Danser replied, “I’m not good with dates, but I’m familiar

with what happens.” Danser then confirmed that she did not witness the incident.

{¶ 23} Danser stated that she recalled being flagged down at some point by the

victim as she was backing out of her driveway. Danser stated that she then said to the

victim, “Hi. What’s going on?” The trial court then sustained appellee’s objection when

Danser wanted to testify as what she claimed that the victim stated to her in response.

However, the trial court permitted Danser to testify in detail as to her subsequent,

personal observations of the victim. Danser, who had just disclosed her difficulty with

8. dates, next testified that on March 1, 2022, the day after the incident, she observed the

victim sitting outside on her front porch for approximately one-hour wearing her sling,

but then observed the victim remove her sling and do weeding in the yard.

{¶ 24} Upon cross-examination, Danser testified that she had been neighbors with

appellant for 15 years prior to this incident. Appellee then inquired, “[Y]ou consider

[appellant] a friend, right?” Danser replied, “Yeah.” Danser then conceded that after she

learned that appellant had been charged with domestic violence, she contacted appellant.

Lastly, Danser testified, “I don’t stick my head out my window to observe my neighbors

* * * I’m very busy with my own life.” Both parties rested and the case was submitted to

the jury.

{¶ 25} Following their deliberations, the jury found appellant guilty. The jury

foreperson stated, “On or about the 28th day of February, 2022 * * * the defendant did

knowingly cause or attempt to cause physical harm to a family or household member,

contrary to, and in violation of, Section 2919.25(A) of the Revised Code of Ohio.”

{¶ 26} We have carefully considered and reviewed the record of evidence, with

particular focus upon the transcripts of the trial proceedings. The record contains

undisputed evidence reflecting that on February 28, 2022, following a heated outburst by

appellant, the victim took refuge inside of the bathroom in their home. Their younger

daughter then joined her mother inside of the bathroom and locked the door. The victim

then began recording the incident on her mobile phone. While yelling at the victim about

9. household tasks, appellant forced open the door, which struck the victim and pushed her

into the wall, knocking her phone out of her hand, ending the recording.

{¶ 27} Appellant concedes the key points of the events, but, without evidentiary

support, now attempts to attribute blame upon the victim for denying appellant access to

the bathroom when he claims to have needed to urgently urinate. In addition, appellant’s

friend and neighbor, who did not observe the incident and advised the court that she was

not good with dates, provided testimony regarding her claimed observation of the victim

outside performing yard work without wearing her sling on March 1, 2022.

{¶ 28} We have carefully reviewed and considered the record of evidence. We

cannot find that the factfinder, in considering witness credibility and resolving

evidentiary conflicts, created a manifest miscarriage of justice in finding the testimony of

appellee’s witnesses and the cell phone video footage of the incident, to be of greater

credibility than the testimony of appellant and appellant’s friend. The record shows that

this is not an exceptional case in which the evidence weighs heavily against the

conviction.

{¶ 29} Accordingly, we find appellant’s first assignment of error not well-taken.

{¶ 30} In appellant’s second assignment of error, appellant contends that the trial

court erred in limiting the neighbor’s testimony to her own observations of the victim,

and not permitting her hearsay testimony of what the victim allegedly stated to her after

the incident. We do not concur.

10. {¶ 31} As this court held in Stachura v. City of Toledo, 6th Dist. Lucas No. L-19-

1269, 2022-Ohio-345, ¶ 86,

[T]he trial court has broad discretion regarding the admissibility of

evidence in any particular case, so long as such discretion is exercised in

line with the rules of procedure and evidence. Rigby v. Lake Cty., 58 Ohio

St.3d 269, 569 N.E.2d 1056 (1991). However, while there is discretion to

admit or exclude relevant evidence, there is no discretion to admit hearsay.

State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d

442, ¶29 (6th Dist.). Thus, an appellate court applies a de novo standard of

review to a trial court’s decision regarding whether evidence is hearsay or

non-hearsay under Evid.R. 801.

{¶ 32} In support of the second assignment of error, appellant states that, “Trial

counsel had a strategy to try and show the victim as an exaggerator.” However, the

record reflects that Danser was permitted to testify at length regarding her claimed

personal observations of the victim on March 1, 2002, the day after the incident, in which

Danser stated to have observed the victim performing yard work, including weeding,

while not wearing her arm sling.

{¶ 33} Appellant speculates, without proffer, as to what the victim said to the

neighbor. “It is apparent that the neighbor would have testified about S.K. claiming she

had been brutally attacked by S.K.’s husband and showing the sling as the extent of her

11. injury which was what called her attention to her neighbor.” He further argues that,

“This additional claiming of injury would have been especially helpful.”

{¶ 34} However, contrary to appellant’s position on appeal, the record shows that

counsel was not precluded from presenting the exaggerator strategy.

{¶ 35} We further note that appellant offers no legal authority in support of the

second assignment of error. Rather, appellant recites the Evid.R. 801(C) definition of

hearsay and then concludes, “Coupled with assignment of error I[,] this requires a

reversal of the conviction.”

{¶ 36} Thus, we note that, “Where an appellant fails to develop an argument in

support of an assignment of error, this court will not create one for him.” State v.

Fenderson, 6th Dist. Erie No. E-21-018, 2022-Ohio-1973, ¶ 69-71, citing State v. Franks,

2017-Ohio-7045, 95 N.E.3d 773, ¶16 (9th Dist.), Id., quoting Cardone v. Cardone, 9th

Dist. Summit No. 18349, 1998 WL 224934, ¶ 8 (May 6, 1998).

{¶ 37} Additionally, the record reflects that counsel had the opportunity to directly

question the victim upon cross-examination regarding any post-incident conversations

between the victim and Danser. This did not occur. Moreover, as noted above, the

related speculation was without proffer.

{¶ 38} Upon our de novo review, we find no evidence demonstrating that the trial

court erred in excluding the above-referenced hearsay testimony of Danser. We find

appellant’s second assignment of error not well-taken.

12. {¶ 39} On consideration whereof, the judgment of the Vermillion Municipal Court

is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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