State v. Lack

2021 Ohio 2956

• Court: Ohio Court of Appeals
• Decided: August 27, 2021
• Docket: C-200334
• Status: Published

Opinion

[Cite as State v. Lack, 2021-Ohio-2956.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-200334 TRIAL NO. C-20CRB-14187 Plaintiff-Appellee, :

vs. : O P I N I O N. DAVID LACK, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 27, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} Defendant-appellant David Lack appeals his domestic-violence

conviction, asserting that there was insufficient evidence to support his conviction

and that his conviction was against the manifest weight of the evidence. For the

following reasons, we affirm the trial court’s judgment.

I. Facts and Procedure

{¶2} In July 2020, defendant-appellant David Lack was arrested for

domestic violence under R.C. 2919.25(A). Lack’s girlfriend, Tamara Ott, was the

alleged victim.

{¶3} The complaint alleged that during a party hosted by Lack and Ott at

their home, Lack forced his way into a bathroom that Ott was occupying, grabbed her

left wrist, struck her in the back of her arm, and forced her to stay in the bathroom

for ten minutes, “causing her to fear for her life.”

A. Bench Trial

{¶4} At trial, Ott, her friend Lauren Riley, Deputy Adam Giver, and Deputy

Kimberly Koehler testified for the state. Lack did not testify or provide any witnesses.

{¶5} Riley testified that she saw Lack pinning Ott against a kitchen wall and

left the house. She testified that when she came back in the home minutes later, she

heard Lack screaming and Ott saying from inside of a bathroom, “Let go of me. Let

me out.” Riley called 911.

{¶6} Deputies Adam Giver and Kimberly Koehler responded to the 911 call.

The deputies’ body-camera footage was played during trial.

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1. Body-worn camera footage shows that Ott was distraught

{¶7} The footage showed Ott recounting the incident to the deputies shortly

after it occurring. Ott was visibly upset and sobbing. She told the deputies that she

was “scared to death” of Lack and wanted him out of the home.

{¶8} Ott explained that Lack had blocked her from leaving the bathroom.

She told Deputy Giver that Lack had been “in her face” and had her bent backward

over the bathroom counter. She told the deputies that Lack had grabbed her wrist

and smacked her on the back of the arm, causing pain and redness.

{¶9} The footage shows that while explaining the incident to Deputy

Koehler, Ott pointed to the areas of redness on her wrist and arm, where she alleged

that Lack had grabbed her (wrist) and smacked her (arm). Deputy Koehler’s body-

camera footage showed her confirming that she had seen redness on Ott’s wrist and

the back of her arm.

2. Trial testimony confirmed body-worn camera footage

{¶10} Ott testified that the incident began when Lack confronted her and

began yelling at her in the kitchen about a picture that she had taken with Riley. At

some point, she left the kitchen and went into the bathroom. Lack began to bang on

the bathroom door, demanding to be let in. Once Lack gained entry into the

bathroom, he continued to yell at her and kept her in the bathroom about ten to 15

minutes.

{¶11} Ott further testified that while in the bathroom, Lack grabbed Ott’s

wrist and “squeezed real hard,” causing pain and leaving marks. She stated that she

kept telling Lack to get out of her face and let her out of the bathroom, but Lack was

“standing there with his fists balled up.” When she moved her arm, Lack “open hand

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* * * smacked” the back of her arm. After she had gotten around Lack and exited the

bathroom, he tried to block her as she walked down the hallway. Ott got around Lack

and saw Deputy Giver. She explained what had happened to Giver and stated that

she “was scared.”

{¶12} Riley testified that she had been friends with Ott for ten years and had

known Lack for the four years that Ott and Lack had been dating. She stated that,

after she and Ott had taken a picture together, she walked in the kitchen to find Lack

pinning Ott against the wall and screaming at her. When she came back into the

home about five minutes later to help a child use the restroom, Riley heard Ott

saying “Let go of me” and “Let me out” from within the bathroom. Riley then called

911. Riley testified that it took about six to seven minutes for law enforcement to

arrive.

{¶13} Deputy Giver testified that he responded to the 911 call and spoke with

Lack. Giver said that Lack was arrested 15 minutes later based on the information

that Giver had obtained about the incident from his partner, Deputy Koehler, and

Green Township officers, who had spoken with Ott. He stated that he did not observe

any injuries on Ott, but that he had not been looking for any injuries on her.

{¶14} Deputy Koehler testified at trial that Ott had been “very distraught”

upon their arrival and that she had observed redness on Ott’s wrist and on the back

of her arm.

{¶15} The trial court stated that while it did not think that Lack had intended

to hit or physically harm Ott, it believed that Lack recklessly harmed her. The trial

court then corrected itself, stating that Lack’s conduct was purposeful, but in the heat

of passion. The trial court found Lack guilty of domestic violence and sentenced him

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to 180 days in jail with 180 days suspended, nine months of community control, and

anger management classes. Further, the trial court ordered Lack to stay away from

Ott.

{¶16} Lack now appeals.

II. Assignments of Error

A. Sufficiency of the Evidence

{¶17} Lack asserts in his first assignment of error that the trial court’s

judgment was based on insufficient evidence.

{¶18} The test for determining the sufficiency of the evidence is whether

“after viewing the probative evidence and inferences reasonably drawn therefrom in

the light most favorable to the prosecution, any rational trier of fact could have found

all the essential elements of the offense beyond a reasonable doubt.” State v.

MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State

v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). It is a question of law

for the court to determine and this court is not to weigh the evidence unless, after

viewing the evidence, it weighs heavily against conviction. MacDonald at ¶ 12.

{¶19} Lack was convicted of domestic violence under R.C. 2919.25(A), which

provides, “No person shall knowingly cause or attempt to cause physical harm to a

family or household member.” The slightest injury is sufficient to prove physical

harm. State v. Daniels, 2018-Ohio-1701, 111 N.E.3d 708, ¶ 35 (1st Dist.).

{¶20} “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.” R.C. 2901.22(B). “[A] defendant acts knowingly when,

although not necessarily intending a particular result, he or she is aware that the

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result will probably occur.” State v. Preston, 8th Dist. Cuyahoga No. 109572, 2021-

Ohio-2278, ¶ 36. People are presumed to understand the reasonable and probable

consequences of their actions. Id.

{¶21} Lack contends that there was insufficient evidence to show that he

knowingly caused Ott harm. Lack appears to concede that he “put his hands” on Ott.

But he contends that he could not have known that he would cause Ott harm under

R.C. 2919.25(A) because “[p]utting your hands on someone is not an act that will

probably result in harm.”

{¶22} The evidence was sufficient to support all of the necessary elements of

R.C 2919.25(A): Lack knowingly squeezed Ott’s wrist and hit the back of her arm. He

is presumed to understand the reasonable and probable consequences of his actions.

It is reasonable and probable to assume that when someone hits another person, the

aggressor knows that the victim will suffer some harm.

{¶23} Lack’s first assignment of error is overruled.

B. Weight of the Evidence

{¶24} Lack’s second assignment of error asserts that he is entitled to a new

trial because his conviction was contrary to the manifest weight of the evidence.

{¶25} In reviewing a weight-of-the-evidence claim, this court must review

“the entire record, weigh the evidence and all reasonable inferences, consider

the credibility of the witnesses and determine whether, in resolving conflicts in the

evidence, the [trier of fact] 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. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59,

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

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{¶26} The weight of the evidence and the credibility of the witnesses are

primarily for the trier of fact. Bailey at ¶ 63. In reviewing a challenge to the weight of

the evidence, this court sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton

No. C-180493, 2020-Ohio-1230, ¶ 17, quoting Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541. However, this court will not substitute its judgment for that of the trier

of fact on the issue of witness credibility unless it is patently apparent that the trier of

fact lost its way in arriving at its verdict. Bailey at ¶ 63.

{¶27} Lack asserts that the testimony was “incredible” because Ott’s story

changed about how Lack got into the bathroom, discrepancies existed between Ott’s

and Riley’s stories, Ott was able to escape the bathroom, Ott and Riley have

motivation to lie, and Ott recounted that Lack had hurt her only after deputies asked

specific questions about whether Lack had harmed her.

{¶28} But Deputy Koehler testified that she saw redness on Ott’s wrist and

arm. Lack does not dispute that he “put his hands on” Ott. Thus, it is not patently

apparent that the trial court lost its way in finding that Lack knowingly caused Ott

physical harm.

{¶29} Lack’s second assignment of error is overruled.

III. Conclusion

{¶30} The trial court’s finding Lack guilty of domestic violence was

supported by sufficient evidence. A reasonable person could have found that the

state proved beyond a reasonable doubt that Lack knowingly caused Ott harm by

smacking her arm and squeezing her wrist. Moreover, the trial court did not lose its

way in finding Lack guilty of domestic violence. Lack’s assignments of errors are

overruled and we affirm the trial court’s judgment.

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Judgment affirmed.

MYERS, P.J., and BERGERON, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion