State v. Kirkman

2024 Ohio 5276

• Court: Ohio Court of Appeals
• Decided: November 4, 2024
• Docket: 2024 CA 00029
• Status: Published

Opinion

[Cite as State v. Kirkman, 2024-Ohio-5276.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 2024 CA 00029 MICHAEL KIRKMAN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No.l 2023 CR 02326

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 4, 2024

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE STONE BERNARD HUNT PROSECUTING ATTORNEY 2395 McGinty Road, NW VICKI L. DeSANTIS North Canton, Ohio 44720 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2024 CA 00029 2

Wise, J.

{¶1} Appellant Michael Kirkman, appeals his conviction on one count of

Domestic Violence and one count of Obstructing Official Business, entered in the Stark

County Court of Common Pleas following a jury trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS

{¶3} For purposes of this Opinion, the relevant facts and procedural history are

as follows:

{¶4} This case arises out of an incident which occurred on October 7, 2023,

wherein T.M. called 9-1-1, alleging Appellant, Michael Kirkman, caused her injury during

a physical altercation.

{¶5} On November 30, 2023, a Stark County grand jury indicted Defendant-

Appellant Michael Kirkman on one count of Domestic Violence, in violation of R.C.

§2919.25(A)/(D), a third-degree felony based on his two prior convictions of related

offenses under R.C. §2919.25(D)(4); and, one count of Obstructing Official Business, in

violation of R.C. §2921.31(A)/(B), a second-degree misdemeanor.

{¶6} On December 8, 2023, in lieu of arraignment, Appellant filed a written plea

of not guilty to said charges.

{¶7} The matter proceeded to a jury trial on January 31, 2024. At trial, the jury

heard the following testimony:

{¶8} Officer Caleb Bodjanac, an officer with the Canton Police Department, was

the sole witness who testified at trial. T.M. did not show for trial. Stark County, Case No. 2024 CA 00029 3

{¶9} Officer Bodjanac testified that on October 7, 2023, he and an officer-in-

training, Cadet Franks, responded to 1866 Sixth Street NE, Apartment 102, ("Hillview

Apartments"), in Stark County, Ohio, pursuant to a dispatch regarding a 9-1-1 call from

the victim ("T.M."). (T. at 97-100).

{¶10} On the 9-1-1 recording, which is 3:22 minutes long, T.M. said, "My boyfriend

is being physical." She stated that her address was "1866 Northeast Hillview apartments,"

and told the operator "but I left and went across the street where I was safe ma'am, . . . I

didn't want to get hit no more."

{¶11} At first T.M. said, "I stay in apartment 102." T.M. then told the operator, "I

haven't lived there very long" and then stated that her apartment number was "201,"

adding, "because I lived on the second floor." T.M. told the operator that Appellant

Kirkman's birthday is December 23, 1976, ... yes, December 22." T.M. told the operator,

that Kirkman was "smacking me in the face, he head-butted me, ... I have bruises all over

me, I don't need an ambulance ... I'm scared it's going to go too far' ... I'm scared for my

life."

{¶12} Officer Bodjanac was wearing his body camera that day and the State

played the video for the jury. (T. at 99). T.M. told the officer that Kirkman lived with her

and that they had lived together for eight months. (T. at 121). T.M. told Officer Bodjanac

that Kirkman was "beating my ass and [she] [could not] take it anymore." Id. She

described welts and bruises that Kirkman left on her body that day and the previous

couple of days. Id. T.M. stated, "He tortures me." Id. She told Kirkman, "I don't want to

argue, you're whooping my ass. I can't take much more." Id. While she was doing the

laundry, Kirkman "came flying down the hallway" and T.M. said, "I cowered because I'm Stark County, Case No. 2024 CA 00029 4

scared, he kicked me in the head, stomped on my toes, smacked me." Id. Kirkman told

her, "You better follow me home, I'm going to kill your cat." Id. T.M. repeated that they

had "been together eight months." Id. "He totally destroyed my apartment." Id.

{¶13} Officers had T.M. fill out a domestic violence statement while she was at the

neighbor's residence and then proceeded to take pictures of her injuries. T.M. told the

officers, "I was coming to the other day, ... he choked me out ... he would kill me so fast."

Id.

{¶14} During Officer Bodjanac's testimony, he identified T.M.'s domestic violence

statement. (T. at 100-101). In the statement, T.M. wrote:

I, the undersigned, state that at 3:30 on the 7th day of Oct, 2023 at

1866 Hillview Apt, Mike Kirkman who is related to me as my boyfriend

committed acts of Domestic Violence ... where he or she resides or has

resided with me by: (sic)

Today he was really angry because I went to the next building to

wash laundry and he no stop (sic) kept calling my phone and told me if I

didn't come home now he was coming over to the laundry room to whoop

my fucking whore ass. I said no, and before I knew it he was running toward

me and kicking me in the side of the head and punched my arms over and

over. I was able to stop him long enough to run to my neighbors (sic) house

that's when I called the cops.

{¶15} Officer Bodjanac took several photographs of T.M. 's injuries which showed

her face with a swollen and bruised nose, bruising on her right and left arms, her right

side, and lower back. (T. at 101-103). At that point, based on the evidence, Officer Stark County, Case No. 2024 CA 00029 5

Bodjanac determined that he had enough information to arrest Appellant and went to

Hillview Apartments to locate him. (T. at 103-104). However, T.M. had given officers the

wrong apartment number, Apartment 201 was a vacant apartment. (T. at 104). T.M.

apologized and explained she had not lived there for very long. Id.

{¶16} Officers had T.M. accompany them to the apartment complex to show them

where she lived. (T. at 104). The actual apartment number was 102, so the officers

knocked on the door, but received no response. (T. at 104-105). Officer Bodjanac then

used the key provided by T.M. to unlock the door and continued to announce his

presence. (T. at 105). The State again played a portion of his body cam which showed

the officers entrance into and search of the apartment. (T. at 105).

{¶17} The officers found Appellant hiding under a pile of clothes behind a couch

in the bedroom. Id. T.M. was waiting outside by the cruiser and as the officers brought

Appellant outside, arrested him, and placed him in the back of the cruiser, she. told the

officers to let Appellant know that she would call his parents and have them come and

get his dog and things from the apartment. Id.

{¶18} Officer Bodjanac described to the jury how the officers searched every area

of the house while trying to maintain cover in open areas such as hallways and doors. (T.

at 105-106). He stated that the apartment was a mess with stuff strewn everywhere, so

the officers moved slowly through the living room areas. (T. at 106). When Officer

Bodjanac began to search in the first bedroom he saw a space behind the couch in the

corner where clothes were piled up. (T. at 106). As he reached down to see if someone

was there, he grabbed the top of Appellant's head. (T. at 106-107). The officers did not

know if Appellant was armed or how he would react toward police, so they ordered him Stark County, Case No. 2024 CA 00029 6

to show them his hands and to come out from behind the couch. (T. at 107). The officers

ultimately had to pull him out because he refused to follow their commands. (T. at 107).

{¶19} Once Appellant was out from behind the couch and the officers could see

his hands, they were able to place him in handcuffs and taken him into custody. (T. at

107). By that time, additional police officers had arrived to assist. (T.at 107).

{¶20} The jury also heard clips of several jail-house calls between T.M. and

Appellant. (T. at 108-111).

October 17, 2023 - 1:03 minutes long- "You have to go and make a

statement, get it notarized, take it to the court saying you don't want to do

this."

November 23, 2023 at 11:28 a.m. - 5:36 minutes long- "I'm not going

to court ... and I'm not going to testify." "I fucking gave your brother your

(bag) things. Inaudible. "I made sure your family got your stuff." (T.M.

speaking).

November 23, 2023 at 11:46 a.m. - 1:34 minutes long- "Thanks for

letting me apologize." (Appellant speaking).

November 24, 2023 - 6:09 minutes long- "Maybe you should press

charges on me ... This will never make me leave you alone ... Just,

remember till death, do us part ... You're a bitch." (Appellant speaking).

“I'm not pressing charges against you ... I'm moving on with my life."

(T.M. speaking)

"You're not going to, I won't let you, till death do us part." (Appellant

speaking) Stark County, Case No. 2024 CA 00029 7

November 26, 2023 - 7:50 minutes long- "Maybe you should really

press charges . . . You better find someone who is going to protect you from

me because I'm going to kill you ... And, then I'm going to kill myself ... You

made me promise you that I'd be your man." (Appellant speaking).

December 2, 2023 - 1:05 minutes long- "If you're asked, and you may

be contacted to be asked, ... at least say I didn't live there ... because they

have to prove that I lived with you for it to be domestic violence." (Appellant

December 9, 2023 - 3:51 minutes long- "You know if you get out you

can't come here right ... You're going to get in trouble I have a restraining

order on you"

"I want my dog ... you don't understand ... it's going to be very bad

when I get out ... I'll go right to the grave because then I'm going to take

everybody I can with me ... you don't understand, I have a death wish . . .

you are the main obstacle in it ... it will come back to you, I told you, the

shadow ... As of right now, you better make sure you are safe ... And,

restraining orders they don't mean shit ... My dog." (Appellant speaking.)

{¶21} In addition, the State also played a jail call between Appellant and his

mother. Id.

October 12, 2023 - 04:31 minutes long "I pushed her away and

fucking hit her to get her off me ... All my jewelry, all my clothes." "Ma, you

need to call her tonight and tell her not to go [to court]." (Appellant

speaking). Stark County, Case No. 2024 CA 00029 8

"I can try ... You should have thought about that before you hit her."

(Appellant’s mother speaking).

"If a woman is man enough to hit a man, she's man enough to get hit

back." "Tell her don't do this to me ... Call her mom." (Appellant speaking).

{¶22} Officer Bodjanac identified the voices in the calls as Appellant's and T.M.'s

voices. (T. at 108). In several jail calls, Appellant would start the calls with T.M.by saying

“Hello beautiful”, but by the end of the conversation he was telling T.M. that he would kill

her.

{¶23} Officer Bodjanac identified Appellant in open court. (T. at 116).

{¶24} Following deliberations, the jury returned verdicts finding Appellant guilty on

both counts.

{¶25} On February 5, 2024, the trial court held a sentencing hearing wherein it

sentenced Appellant to thirty-six (36) months in prison.

{¶26} Appellant now appeals, raising the following errors for review:

ASSIGNMENTS OF ERROR

{¶27} “I. APPELLANT'S CONVICTION OF ROBBERY [SIC] WAS NOT

SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE

{¶28} “II. APPELLANT'S CONVICTION OF ROBBERY [SIC] WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE.”

I., II.

{¶29} In his first and second assignments of error, Appellant argues his domestic

violence conviction is against the manifest weight and sufficiency of the evidence. We

disagree. Stark County, Case No. 2024 CA 00029 9

{¶30} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of

the syllabus (1991).

{¶31} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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.’ ” State v. Thompkins, 1997-Ohio-52, quoting State v. Martin, 20 Ohio

App. 3d 172, 175 (1st Dist. 1983).

{¶32} 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.

{¶33} Appellant was convicted of committing Domestic Violence, in violation of

R.C. §2919.25(A), which provides:

(A) No person shall knowingly cause or attempt to cause physical

harm to a family or household member.

{¶34} R.C. §2919.25(F)(1)(a)(1) defines “household member” as follows:

(F) As used in this section and sections 2919.251 and 2919.26 of the

Revised Code:

(1) “Family or household member” means any of the following: Stark County, Case No. 2024 CA 00029 10

(a) Any of the following who is residing or has resided with the

offender:

(i) A spouse, a person living as a spouse, or a former spouse of the

offender;

(ii) A parent, a foster parent, or a child of the offender, or another

person related by consanguinity or affinity to the offender;

(iii) A parent or a child of a spouse, person living as a spouse, or

former spouse of the offender, or another person related by consanguinity

or affinity to a spouse, person living as a spouse, or former spouse of the

offender.

(b) The natural parent of any child of whom the offender is the other

natural parent or is the putative other natural parent.

(2) “Person living as a spouse” means a person who is living or has

lived with the offender in a common law marital relationship, who otherwise

is cohabiting with the offender, or who otherwise has cohabited with the

offender within five years prior to the date of the alleged commission of the

act in question.

{¶35} The trial court instructed the jury as follows:

Family or household member means a person who has resided with

the Defendant and who had lived as a spouse of the Defendant within the

past five years.

Person living as spouse means a person who is cohabitating with the

Defendant. Stark County, Case No. 2024 CA 00029 11

Reside means to live in a place on an ongoing basis.

Cohabit means the sharing of family or financial responsibilities or

consortium.

Family or financial responsibilities may include such things as

providing shelter, food, clothing, utilities, and combining assets.

Consortium may include such things as mutual respect, fidelity,

affection, society, cooperation, solace, aid to each other, friendship, and

sexual relations.

{¶36} (T. at 132-33).

{¶37} Here, Appellant argues the State failed to prove the victim was a family or

household member.

{¶38} Upon review of the evidence as set forth in our Statement of the Case and

Facts, supra, as well as the entire record in this matter, we find Appellant's domestic

violence conviction was not against the manifest weight or sufficiency of the evidence.

{¶39} As set forth above, Officer Bodjanac testified that T.M. identified Appellant,

who was present in the apartment when the officers arrived, as her assailant. Video

footage from the body cameras corroborate the officers’ testimony and allowed the jury

to hear T.M.’s account of the incident in real time. The jury also heard the jail calls

between Appellant and T.M. and Appellant and his mother. Additionally, the jury had

before it the 9-1-1 call and the domestic violence statement made by T.M. The jury also

saw photographs taken by Officer Bodjanac of T.M. reflecting the injuries she received

the evening of the assault. Stark County, Case No. 2024 CA 00029 12

{¶40} T.M. told Officer Bodjanac more than once that she and Appellant had been

living together for eight months. (T. at 121, Body camera footage). She also told the

officers that Appellant threatened her by telling her “You better follow me home; I’m going

to kill your cat.” (Body camera footage). Her domestic violence statement also stated that

he told her “if I didn’t come home now he was coming over to the laundry room to whoop

my fucking whore ass.”

{¶41} In the jail calls, Appellant made reference to his things being at T.M.’s

apartment, including his clothes, jewelry and his dog. (Oct. 12, 2023, jail call; December

9, 2023, jail call). In another jail call, Appellant asked T.M. to say that they did not live

together so that he could not be charged with domestic violence. (December 2, 2023, jail

call).

{¶42} The testimony of one witness, if believed by the jury, is enough to support

a conviction. State v. Barnett, 2019-Ohio-3944, ¶¶ 45-46 (5th Dist.), citing State v. Dunn,

2009-Ohio-1688, ¶ 133 (5th Dist.). After weighing the evidence and evaluating the

credibility of the witnesses, with appropriate deference to the trier of fact's credibility

determination, we cannot say that the jury clearly lost its way and created a manifest

injustice with regard to the domestic-violence conviction. It is well-established that a

domestic violence conviction does not require the testimony of the victim. Over twenty

years ago, the unique nature of domestic violence prosecutions was acknowledged in

State v. Lee, 73 Ohio Misc.2d 9, 14 (M.C.1995):

No rule of law requires that a battered partner testify against a once

loved one for the state to proceed on a charge of domestic violence. Murder

cases obviously go forward without the testimony of the victim—because Stark County, Case No. 2024 CA 00029 13

she/he's dead. Thus, if domestic violence cases are properly investigated

and prepared for trial, the victim's presence at trial may not be required.

{¶43} Construing all of the evidence in favor of Appellee, sufficient evidence

supports Appellant's conviction. Also, this is not the case in which 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. Appellant's conviction is not against the manifest

weight of the evidence.

{¶44} Appellant’s first and second Assignments of Error are denied.

{¶45} For the reasons stated in the foregoing opinion, the decision of the Stark

County Common Pleas Court is affirmed.

By: Wise, J.

Gwin, P. J., and

King, J., concur.

JWW/kw 1022