[Cite as State v. Krieger, 2018-Ohio-4483.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-12-167
: OPINION - vs - 11/5/2018 :
TIMOTHY D. KRIEGER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT Case No. 2017CRB000990
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Elter Law Office, Nathan J. Elter, 212 North Broadway, Lebanon, Ohio 45036, for defendant- appellant
PIPER, J.
{¶ 1} Defendant-appellant, Timothy Krieger, appeals his conviction in the Warren
County Court for one count of domestic violence against his wife, Kellie.
{¶ 2} Kellie, Krieger, their child, and Kellie's children from a previous relationship
lived in the same home despite Kellie and Krieger going through divorce proceedings at the
time. One afternoon, Kellie returned home and learned that her daughter from the previous Warren CA2017-12-167
relationship and Krieger had an argument that day. Kellie confronted Krieger and expressed
her extreme displeasure regarding the way he spoke to her daughter during the argument,
and Kellie and Krieger began an argument of their own.
{¶ 3} Krieger walked away from Kellie, went to the master bathroom, and began a
recording on his phone to capture what was to occur. Soon, Kellie confronted Krieger in the
bathroom and stood in his way so that he could not leave. Krieger asked Kellie not to block
his path, and when Kellie did not move to allow his exit, Krieger placed his hands on Kellie
and pushed her out of the way so that he could leave.
{¶ 4} Kellie, who worked as a local government employee, called the police chief
because she did not understand "what's right and what's wrong" in regard to domestic
violence. However, she told the chief that she did not want police sent to her home. Kellie
then called her divorce attorney. After speaking with her divorce attorney, Kellie texted the
police chief and asked him to send a unit to her home.
{¶ 5} An officer soon responded and spoke with Krieger and Kellie. Krieger admitted
to the officer that he pushed Kellie, but told the officer that he felt compelled to move her
once she blocked his ability to leave the bathroom. After the investigation was complete, the
officer filed a complaint in the Warren County Court against Krieger alleging one count of
domestic violence. Krieger pled not guilty, and the matter proceeded to a bench trial.
{¶ 6} During trial, the state presented testimony from the responding officer and
Kellie, and Krieger moved the court for acquittal at the close of the state's case-in-chief. The
trial court denied Krieger's motion for acquittal, and Krieger then testified in his own defense.
The trial court found Krieger guilty and sentenced him to 90 days in jail, 88 days of which
were suspended. Krieger now appeals his conviction and sentence, raising two assignments
of error. We will address Krieger's two assignments of error together, as the arguments are
interrelated. -2- Warren CA2017-12-167
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S OHIO CRIM. RULE
29 MOTION FOR ACQUITTAL AS APPELLEE FAILED TO ESTABLISH ALL ELEMENTS
OF THE OFFENSE BEYOND A REASONABLE DOUBT.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF
DOMESTIC VIOLENCE.
{¶ 11} Krieger argues in his two assignments of error that the trial court erred in
finding him guilty, essentially because his conviction was not supported by sufficient
evidence.
{¶ 12} Crim.R. 29(A) provides that a trial court "on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the
same standard as that used to review a sufficiency-of-the-evidence claim. State v. Workman,
12th Dist. Clermont Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 19.
{¶ 13} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would support a conviction. Id. at ¶ 20. The relevant inquiry is
"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. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-
2321, ¶ 22.
{¶ 14} Krieger was convicted of domestic violence in violation of R.C. 2919.25(A),
which prohibits a person from knowingly causing or attempting to cause physical harm to a -3- Warren CA2017-12-167
family or household member. R.C. 2901.01(A)(3) defines "physical harm" as "any injury,
illness, or other physiological impairment, regardless of its gravity or duration."
{¶ 15} Pursuant to R.C. 2901.22(B), "[a] person acts knowingly, regardless of
purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist." A defendant must be
subjectively aware that a specified result is probable. State v. Berry, 12th Dist. Warren No.
CA2006-11-133, 2007-Ohio-7082. The defendant's state of mind and perception are
measured, not an objective reasonable expectation, when determining if the defendant acted
knowingly. Id. This principle comports with the long-held maxim in Ohio law that a person is
presumed to intend the probable consequences of his voluntary acts. Id.
{¶ 16} After reviewing the record, we find that the trial court erred in convicting
Krieger of domestic violence because there is insufficient evidence to prove that Kellie was
physically harmed, that Krieger attempted to harm her, or that Krieger acted knowingly.
{¶ 17} The statutory requirements for domestic violence require physical harm, or an
attempt to physically harm, including injury, illness, or other physiological impairment. The
record is undisputed that Kellie did not suffer any form of physical harm as a result of the
incident. Kellie testified that she was not injured by Krieger pushing her, and the responding
officer testified that he did not observe any injuries to Kellie. On cross-examination, the
responding officer testified that during his investigation, "[Kellie] stated that she was not
injured. She also stated she did not have any marks that she was aware of at the time." The
officer was also asked why he did not take any photographs of Kellie during his investigation,
and explained, "[Kellie] was not alleging any injuries or any visible signs of any injuries at that
time."
{¶ 18} Nor did Kellie assert that any evidence of injury, such as bruising or marks, -4- Warren CA2017-12-167
developed in the days after the incident occurred. Even so, the state alleges that the lack of
injury to Kellie is not grounds for reversal because the relevant statute criminalizes an
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[Cite as State v. Krieger, 2018-Ohio-4483.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-12-167
: OPINION - vs - 11/5/2018 :
TIMOTHY D. KRIEGER, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT Case No. 2017CRB000990
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Elter Law Office, Nathan J. Elter, 212 North Broadway, Lebanon, Ohio 45036, for defendant- appellant
PIPER, J.
{¶ 1} Defendant-appellant, Timothy Krieger, appeals his conviction in the Warren
County Court for one count of domestic violence against his wife, Kellie.
{¶ 2} Kellie, Krieger, their child, and Kellie's children from a previous relationship
lived in the same home despite Kellie and Krieger going through divorce proceedings at the
time. One afternoon, Kellie returned home and learned that her daughter from the previous Warren CA2017-12-167
relationship and Krieger had an argument that day. Kellie confronted Krieger and expressed
her extreme displeasure regarding the way he spoke to her daughter during the argument,
and Kellie and Krieger began an argument of their own.
{¶ 3} Krieger walked away from Kellie, went to the master bathroom, and began a
recording on his phone to capture what was to occur. Soon, Kellie confronted Krieger in the
bathroom and stood in his way so that he could not leave. Krieger asked Kellie not to block
his path, and when Kellie did not move to allow his exit, Krieger placed his hands on Kellie
and pushed her out of the way so that he could leave.
{¶ 4} Kellie, who worked as a local government employee, called the police chief
because she did not understand "what's right and what's wrong" in regard to domestic
violence. However, she told the chief that she did not want police sent to her home. Kellie
then called her divorce attorney. After speaking with her divorce attorney, Kellie texted the
police chief and asked him to send a unit to her home.
{¶ 5} An officer soon responded and spoke with Krieger and Kellie. Krieger admitted
to the officer that he pushed Kellie, but told the officer that he felt compelled to move her
once she blocked his ability to leave the bathroom. After the investigation was complete, the
officer filed a complaint in the Warren County Court against Krieger alleging one count of
domestic violence. Krieger pled not guilty, and the matter proceeded to a bench trial.
{¶ 6} During trial, the state presented testimony from the responding officer and
Kellie, and Krieger moved the court for acquittal at the close of the state's case-in-chief. The
trial court denied Krieger's motion for acquittal, and Krieger then testified in his own defense.
The trial court found Krieger guilty and sentenced him to 90 days in jail, 88 days of which
were suspended. Krieger now appeals his conviction and sentence, raising two assignments
of error. We will address Krieger's two assignments of error together, as the arguments are
interrelated. -2- Warren CA2017-12-167
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN DENYING APPELLANT'S OHIO CRIM. RULE
29 MOTION FOR ACQUITTAL AS APPELLEE FAILED TO ESTABLISH ALL ELEMENTS
OF THE OFFENSE BEYOND A REASONABLE DOUBT.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF
DOMESTIC VIOLENCE.
{¶ 11} Krieger argues in his two assignments of error that the trial court erred in
finding him guilty, essentially because his conviction was not supported by sufficient
evidence.
{¶ 12} Crim.R. 29(A) provides that a trial court "on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion pursuant to the
same standard as that used to review a sufficiency-of-the-evidence claim. State v. Workman,
12th Dist. Clermont Nos. CA2016-12-082 and CA2016-12-083, 2017-Ohio-8638, ¶ 19.
{¶ 13} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence in order to determine whether such
evidence, if believed, would support a conviction. Id. at ¶ 20. The relevant inquiry is
"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. Watson, 12th Dist. Warren No. CA2014-08-110, 2015-Ohio-
2321, ¶ 22.
{¶ 14} Krieger was convicted of domestic violence in violation of R.C. 2919.25(A),
which prohibits a person from knowingly causing or attempting to cause physical harm to a -3- Warren CA2017-12-167
family or household member. R.C. 2901.01(A)(3) defines "physical harm" as "any injury,
illness, or other physiological impairment, regardless of its gravity or duration."
{¶ 15} Pursuant to R.C. 2901.22(B), "[a] person acts knowingly, regardless of
purpose, when the person is aware that the person's conduct will probably cause a certain
result or will probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist." A defendant must be
subjectively aware that a specified result is probable. State v. Berry, 12th Dist. Warren No.
CA2006-11-133, 2007-Ohio-7082. The defendant's state of mind and perception are
measured, not an objective reasonable expectation, when determining if the defendant acted
knowingly. Id. This principle comports with the long-held maxim in Ohio law that a person is
presumed to intend the probable consequences of his voluntary acts. Id.
{¶ 16} After reviewing the record, we find that the trial court erred in convicting
Krieger of domestic violence because there is insufficient evidence to prove that Kellie was
physically harmed, that Krieger attempted to harm her, or that Krieger acted knowingly.
{¶ 17} The statutory requirements for domestic violence require physical harm, or an
attempt to physically harm, including injury, illness, or other physiological impairment. The
record is undisputed that Kellie did not suffer any form of physical harm as a result of the
incident. Kellie testified that she was not injured by Krieger pushing her, and the responding
officer testified that he did not observe any injuries to Kellie. On cross-examination, the
responding officer testified that during his investigation, "[Kellie] stated that she was not
injured. She also stated she did not have any marks that she was aware of at the time." The
officer was also asked why he did not take any photographs of Kellie during his investigation,
and explained, "[Kellie] was not alleging any injuries or any visible signs of any injuries at that
time."
{¶ 18} Nor did Kellie assert that any evidence of injury, such as bruising or marks, -4- Warren CA2017-12-167
developed in the days after the incident occurred. Even so, the state alleges that the lack of
injury to Kellie is not grounds for reversal because the relevant statute criminalizes an
attempt to cause physical harm, in addition to actually causing physical harm. The state
asserts that Krieger's push was an attempt to harm because he was angry with Kellie when
he pushed her.
{¶ 19} The state is correct that Krieger admitted to police on the day of the incident
that he pushed Kellie. The state is also correct that this court has previously determined that
a push can amount to "physical harm" when accompanied "by the requisite intent." State v.
Kelley, 12th Dist. Warren No. CA2001-12-104, 2002-Ohio-5886, ¶ 24. However, there is no
evidence in the record that Krieger pushed Kellie so that she would suffer physical harm
because Krieger's only intent was to move Kellie out of his way. Nor is there evidence to
support the state's contention that Krieger's push, even if he was angry with Kellie, could
cause her to suffer physical harm. As such, and lacking the requisite intent, the push in the
case sub judice did not amount to physical harm or an attempt to physically harm.
{¶ 20} The state also failed to prove the requisite mental state: knowingly. The state
presented no evidence that Krieger pushed Kellie to cause or attempt to cause her physical
harm or that Krieger was subjectively aware that harming Kellie was probable based on the
way he physically moved her from his path.
{¶ 21} The record, including the recording Krieger made on his phone of what
occurred during the incident, demonstrates that Krieger's actions were solely motivated by his
need for Kellie to move so he could exit the bathroom, and that Krieger took no action
beyond the minimal contact that was necessary to move Kellie from his path. During
Krieger's testimony, he explained that he "did nudge [Kellie] twice, letting her know I want to
get out and verbally was letting her know, excuse me, excuse me, you can't corner me."
Kellie never disputed that she was blocking Krieger's egress or that she intentionally stood in -5- Warren CA2017-12-167
his way.
{¶ 22} Despite the state's contention that Krieger pushed Kellie out of anger, Kellie
testified that Krieger did not threaten her or injure her, even when she refused Krieger's
requests that she move so he could exit. Despite Krieger's attempt to diffuse the argument
and leave Kellie's presence by exiting the bathroom, Kellie remained in Krieger's way and
told him that he needed to "listen and stop being mean" to her daughter. At that point, and
only after Kellie repeatedly refused to move, Krieger physically moved Kellie to accomplish
his singular goal of regaining a means of egress from the bathroom. However, nothing on
record suggests that Krieger took any unnecessary actions or used any excessive force to
accomplish his purpose of leaving the bathroom.
{¶ 23} The evidence, even when viewed in a light most favorable to the prosecution,
establishes that Krieger's only intent on the afternoon of the incident was to free himself from
the bathroom and to move Kellie so that she was no longer blocking his path. He did not,
however, knowingly cause or attempt to cause Kellie physical harm. As such, Krieger's
conviction is not supported by sufficient evidence, and his two assignments of error are
sustained. Krieger's conviction is reversed, his sentence is vacated, and he is discharged
accordingly.
{¶ 24} Judgment reversed, and Krieger is discharged.
S. POWELL, P.J., and M. POWELL, J., concur.
-6-