[Cite as State v. Mitchell, 2022-Ohio-3176.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 21CA0071-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE RYAN D. MITCHELL COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 20CR0666
DECISION AND JOURNAL ENTRY
Dated: September 12, 2022
CARR, Judge.
{¶1} Appellant, Ryan Mitchell, appeals the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} The Medina County Grand Jury indicted Mitchell on one count of domestic
violence in violation of R.C. 2919.25(A)/(D)(3), a felony of the fourth degree. The alleged victim
was K.R., Mitchell’s longtime girlfriend. Mitchell and K.R. had two children together. Mitchell
pleaded not guilty to the charge at arraignment. The matter proceeded to a jury trial where Mitchell
was found guilty. The trial court sentenced Mitchell to an 18-month prison sentence. Mitchell
was given credit for 71 days served.
{¶3} On appeal, Mitchell raises three assignments of error. This Court rearranges
Mitchell’s assignments of error to facilitate review. 2
II.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE FAILED TO ESTABLISH ON THE RECORD SUFFICIENT EVIDENCE TO SUPPORT THE CHARGE LEVIED AGAINST MR. MITCHELL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶4} Mitchell contends that the trial court failed to present sufficient evidence to convict
him of a fourth-degree felony domestic violence charge. Specifically, Mitchell contends that his
prior battery conviction in Florida did not qualify to enhance the degree of the offense pursuant to
R.C. 2919.25(D)(3). This Court disagrees.
Background
{¶5} At trial, the State presented evidence supporting the following narrative. During
the noon hour on September 17, 2020, Officer Markinos responded to a domestic violence call at
an apartment in Brunswick Hills. Officer Markinos arrived on the scene and located K.R, who
was very distraught. Officer Markinos asked K.R. to fill out a written statement. Officer Markinos
noticed that K.R. had red marks and slight bruising around her neck area. Officer Markinos learned
that the incident occurred approximately 10 hours earlier, around 2:30 AM. Officer Markinos
observed that, based on his training and experience, the marks on K.R.’s neck appeared to be the
result of strangulation. Based on the information that K.R. provided to Officer Markinos, he ran
a search for Mitchell in the law enforcement database. Officer Markinos learned that Mitchell had
a prior history of abuse with K.R. Officer Markinos ultimately determined that it was necessary
to charge Mitchell with domestic violence. Mitchell was not at the scene.
{¶6} At trial, K.R. explained she had been suspicious that Mitchell was cheating on her
so she went through his phone. K.R. testified she had been involved with Mitchell for seven years 3
and that he was the biological father of her two children. K.R. became upset about what she found
in Mitchell’s phone so she threw the phone and hit Mitchell in the face. Mitchell and K.R. began
shouting and shoving each other. At one point Mitchell was on top of K.R. attempting to hold her
down. K.R. and Mitchell wrestled each other across her room. K.R. testified they were both
enraged and they “were physically assaultive of each other.” Although K.R. stated at trial that she
was testifying against her wishes, she acknowledged that she filled out a statement after the
incident indicating that Mitchell held her down, punched her multiple times in the back, and
choked her. K.R. further indicated in the statement that Mitchell told her she did not deserve her
kids and did not deserve to live.
{¶7} Notably, prior to trial, Mitchell had filed a motion in limine arguing that the State
could not introduce evidence of his prior battery conviction in Florida for enhancement purposes
pursuant to R.C. 2919.25(D)(3). The trial court held a short hearing on the motion. Although
Mitchell acknowledged that his prior conviction constituted an offense of violence, he argued the
conviction was inadmissible because there was nothing indicating that K.R. was the victim.
Mitchell argued that while the amended information in the Florida case identified K.R. as the
victim, there was nothing to that effect in the judgment entry. The trial court permitted the State
to call K.R. to testify at the hearing. K.R. testified she was in fact the victim in the Florida case.
The trial court then denied the motion and indicated that Mitchell’s battery conviction in Florida
could be admitted for enhancement purposes.
{¶8} At trial, K.R. testified she had been involved with Mitchell for seven years and that
they had two children together. K.R. testified that her relationship with Mitchell had been violent
in the past. With respect to the altercation in Florida in December 2015, K.R. explained she ended 4
up in the hospital after Mitchell choked and punched her. Mitchell was struggling with addiction
at the time.
{¶9} The parties stipulated that Mitchell’s battery conviction in Florida was an offense
of violence and that K.R., who was the victim, was a family or household member at the time of
the incident.1 With no objection from the parties, the trial court admitted the amended information
charging Mitchell with battery in Sarasota County, Florida, as well as a copy of an order of
probation evidencing that Mitchell entered a plea of nolo contendere to battery and was found
guilty. The State also introduced a copy of Florida’s battery statute, which stated, “[t]he offense
of battery occurs when a person * * * [1] [a]ctually and intentionally touches or strikes another
person against the will of the other; or [2] [i]ntentionally causes bodily harm to another person[.]”
Discussion
{¶10} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before the
trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. 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.
Id. at paragraph two of the syllabus.
{¶11} Mitchell was convicted of domestic violence in violation of R.C.
2919.25(A)/(D)(3). R.C. 2919.25(A) provides that “[n]o person shall knowingly cause or attempt
1 This stipulation was incorporated into the jury instructions. 5
to cause physical harm to a family or household member. R.C. 2919.25(D)(3) provides, in
pertinent part, as follows:
[I]f the offender previously has pleaded guilty to or been convicted of domestic violence, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to domestic violence, a violation of section 2903.14, 2909.06, 2909.07, 2911.12, 2911.211, or 2919.22 of the Revised Code if the victim of the violation was a family or household member at the time of the violation, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to any of those sections if the victim of the violation was a family or household member at the time of the commission of the violation, or any offense of violence if the victim of the offense was a family or household member at the time of the commission of the offense, a violation of division (A) or (B) of this section is a felony of the fourth degree[.]
{¶12} In support of his sufficiency challenge, Mitchell maintains that the State failed to
demonstrate that he was previously convicted of domestic violence or a substantially similar
offense for enhancement purposes. Mitchell asserts that “[t]here was no finding in this prior
[Florida] case that [Mitchell] was convicted of domestic violence.”
{¶13} Mitchell’s argument is without merit. R.C. 2919.25(D)(3) provides a number of
ways that the degree of a domestic violence charge may be enhanced. The statute provides that
domestic violence will be charged as fourth-degree felony if the offender previously has been
convicted of “any offense of violence if the victim of the offense was a family or household
member at the time of the commission of the offense[.]” Id. Here, the parties stipulated that
Mitchell’s battery conviction in Florida was an offense of violence and that K.R. was a family or
household member at the time of the incident. Furthermore, K.R. testified that she ended up in the
hospital after Mitchell punched and choked her during the Florida incident. Both K.R.’s testimony
regarding the incident as well as the language of Florida’s battery statute further confirm that
Mitchell’s prior conviction was for an offense of violence. It follows that the evidence presented 6
at trial was sufficient to support a finding that Mitchell was guilty of fourth-degree felony domestic
violence.
{¶14} The third assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. MITCHELL’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE [] IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶15} In his second assignment of error, Mitchell contends that his conviction was against
the manifest weight of the evidence. This Court disagrees.
{¶16} In determining whether a criminal conviction is against the manifest weight of the
evidence,
an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence, the
appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the
conflicting testimony.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Tibbs v.
Florida, 457 U.S. 31, 42 (1982). An appellate court should exercise the power to reverse a
judgment as against the manifest weight of the evidence only in exceptional cases. Otten at 340.
{¶17} Mitchell’s foremost contention is that the weight of the evidence does not support
the conclusion that he engaged in any conduct that would constitute domestic violence. Mitchell
points to K.R.’s testimony at trial that she was the aggressor during the incident and that Mitchell
merely attempted to calm her down. 7
{¶18} K.R. was clear in her testimony that she had planned not to cooperate because she
wanted the charges against Mitchell to be dropped. There is no dispute that a physical altercation
occurred between Mitchell and K.R. K.R. indicated that she threw Mitchell’s phone at him after
discovering messages that angered her. Mitchell and K.R. then engaged in a heated confrontation.
In addition to yelling at each other, Mitchell and K.R. started to shove each other and ended up
wrestling across the room. In her written statement, K.R. indicated that Mitchell held her down,
choked her, and punched her in the back during the altercation. During the State’s line of
questioning about her statement, K.R. testified, “I wrote what he did. I didn’t write what I did
because I didn’t want to incriminate myself[.]” K.R. further testified that Mitchell “was not the
only one that was guilty that night[]” and that if Mitchell was charged, she should have been
charged as well.
{¶19} Mitchell’s contention that he was trying to act as a calming force during the incident
is not supported by the weight of the evidence. K.R.’s initial statement to police detailed an assault
at the hands of Mitchell. Officer Markinos’ observations were consistent with K.R.’s initial
statement. Although K.R. testified at trial that she was responsible for escalating the situation, it
is plausible that the jury found K.R.’s statement on the date of the incident more credible than
certain portions of K.R.’s testimony at trial, particularly given that K.R. was adamant she did not
wish to testify. “In reaching its verdict, the jury was in the best position to evaluate the credibility
of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”
State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. In light of K.R.’s
statement immediately following the incident, as well as Officer Markinos’ observations, we
cannot say that the jury clearly lost its way in finding Mitchell guilty. 8
{¶20} To the extent Mitchell further contends that the record does not support the
conclusion that the State proved that he had a prior conviction for enhancement purposes pursuant
to R.C. 2919.25(D)(3), we reiterate that the parties stipulated that Mitchell’s battery conviction in
Florida was an offense of violence and that K.R. qualified as a family or household member at the
time of the offense. The State presented additional testimony and documentary evidence in support
of this finding. See Discussion of Assignment of Error III. As Mitchell has not pointed to any
contradictory evidence in support of his manifest weight challenge, his argument is without merit.
See App.R. 16(A)(7).
{¶21} The second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED THE TESTIMONY OF A SURPRISE WITNESS IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶22} Mitchell contends that the trial court abused its discretion when it allowed the State
to call R.B., a victim advocate who works for the Medina County Prosecutor’s Office, as a witness
at trial. This Court disagrees.
{¶23} As K.R.’s testimony was drawing to a close on the first day of trial, the trial court
held a sidebar conference to discuss several questions posed by the jury. One potential question
was, “Who is the father of this child?” The assistant prosecutor stated that he did not know the
answer and that he had just recently found out that K.R. was pregnant. Defense counsel indicated
that K.R. had not been forthcoming about the answer to that question. The trial court decided
against asking the question. 9
{¶24} On the morning of the second day of trial, the State moved to call R.B. as a witness.
R.B. had a conversation with K.R. the previous day in the hallway of the courthouse. K.R. became
distraught when she realized that she would be forced to testify. During the conversation, K.R.
revealed that Mitchell was the father of her unborn child. The State argued that K.R.’s statements
went to credibility and explained her motivation for recanting portions of her original statement.
Defense counsel objected and questioned the relevance and benefit of the testimony. The trial
court indicated that it would permit the testimony and noted that Mitchell could call K.R. to testify
in rebuttal.
{¶25} R.B. was the final witness to testify at trial. R.B. explained that she was helping
out with K.R. because the victim advocate initially assigned to the case was out the week of
Mitchell’s trial. R.B. observed a range of emotions from K.R., who was experiencing a great deal
of stress because she did not want to testify. K.R. was raising her voice and swearing, in addition
to crying at times. R.B. testified that K.R. stated that she was pregnant on several occasions
throughout the day. K.R. feared that her stress level was not good for her baby. During her
conversations with R.B., K.R. identified Mitchell as the father of the baby. When R.B. was asked
if she knew why K.R. did not disclose that fact during her testimony, R.B. responded that K.R. did
not share that information because she did not want Mitchell to be found in violation of the no
contact order that was in place.
{¶26} After the State rested, the trial court inquired of defense counsel as to whether he
would be calling any witnesses. Defense counsel indicated that he had attempted to contact K.R.
about testifying as a rebuttal witness but was unable to reach her. The trial court called an
approximately 90-minute recess to give defense counsel additional time. When court reconvened
at 12:00 p.m., the defense rested and defense counsel stated that he would not be calling any 10
additional witnesses. Thereafter, defense counsel renewed his Crim.R. 29 motion and asked to
place a number of objections on the record. Most notably, defense counsel stated that he had just
learned that K.R. would not be available until 3:00 p.m. due to work constraints and he requested
a continuance until that time. The trial court responded that defense counsel had not previously
indicated that K.R. would be available. Defense counsel replied that he had just learned of K.R.’s
availability and that if the trial court was not willing to grant a continuance, then he wanted to
place an objection on the record. The trial court denied the request for a continuance.
{¶27} Mitchell has set forth a multifaceted argument on appeal. First, Mitchell contends
that the State committed a discovery violation when it sought to call R.B. as a witness when she
was not identified on the State’s witness list. Mitchell maintains that the trial court abused its
discretion when it failed to fashion an appropriate sanction for the violation. Mitchell suggests
that R.B. should not have been permitted to testify because the paternity of K.R.’s baby was not
relevant to the charge pending against Mitchell. Finally, Mitchell argues that he was prejudiced
when the trial court denied his request for a continuance so that K.R. could testify as a rebuttal
witness. Notably, while Mitchell challenges R.B.’s testimony on a number of grounds, he has not
set forth an argument that R.B.’s testimony constituted inadmissible hearsay.
{¶28} Crim.R. 16 governs discovery in a criminal case. The purpose of the discovery rule
is “to provide all parties in a criminal case with the information necessary for a full and fair
adjudication of the facts, to protect the integrity of the judicial system and the rights of defendants,
and to protect the well-being of witnesses, victims, and society at large.” Crim.R. 16(A). The
disclosure of witness lists is governed by Crim.R. 16(I), which states “each party shall provide to
opposing counsel a written witness list, including names and addresses of any witness it intends to
call in its case-in-chief, or reasonably anticipates calling in rebuttal or surrebuttal. The content of 11
the witness list may not be commented upon or disclosed to the jury by opposing counsel, but
during argument, the presence or absence of the witness may be commented upon.”
{¶29} With respect to discovery violations, Crim.R. 16(L)(1) provides that “[t]he trial
court may make orders regulating discovery not inconsistent with this rule. If at any time during
the course of the proceedings it is brought to the attention of the court that a party has failed to
comply with this rule or with an order issued pursuant to this rule, the court may order such party
to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing
in evidence the material not disclosed, or it may make such other order as it deems just under the
circumstances.”
{¶30} As an initial matter, while Mitchell attempts to couch the State’s request to call
R.B. as a witness as a discovery violation, this case involves a scenario where the events which
served as the basis for R.B.’s testimony did not occur until the first day of trial, meaning that the
State could not have identified her as a witness prior to trial. Moreover, the State did not seek to
call R.B. merely to establish paternity, as suggested by Mitchell. K.R.’s credibility was a central
issue in the case. The State argued that K.R.’s conversation with R.B. provided insight as to why
K.R. recanted portions of her initial statement about the incident. “[A] trial court has broad
discretion in the admission or exclusion of evidence and this Court will not disturb a trial court's
ruling on the admission of evidence absent an abuse of discretion and material prejudice to the
defendant.” Drew v. Marino, 9th Dist. Summit No. 21458, 2004-Ohio-1071, ¶ 8. An abuse of
discretion implies that the trial court's attitude was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Here, where R.B.’s testimony was
probative as to a central issue in the case, we cannot say that the trial court’s decision to permit
R.B.’s testimony was unreasonable, arbitrary, or unconscionable. 12
{¶31} Mitchell further contends that the trial court abused its discretion and violated his
due process rights when it denied his request for a continuance so that K.R. could testify as a
rebuttal witness. A trial court enjoys broad discretion in ruling on a motion for continuance to call
an additional witness after the defense has rested. See State v. Tate, 9th Dist. Summit No. 12111,
1985 WL 4384, *2 (Dec. 11, 1985). The trial court called an approximately 90-minute recess to
provide Mitchell with an opportunity to contact K.R. After the recess, Mitchell indicated that the
defense would not be calling any witnesses and rested. When Mitchell attempted to raise the issue
thereafter, the trial court noted that Mitchell had made no mention of K.R.’s availability prior to
resting his case-in-chief.2 Mitchell effectively forfeited the issue by closing his case-in-chief and
informing the trial court that he did not intend to call any witnesses. State v. Brown, 12th Dist.
Clermont No. CA-1210, 1211, 1983 WL 6344, *1 (Dec. 30, 1983). Under these circumstances,
Mitchell has not demonstrated that the trial court abused its discretion by denying his motion for
a continuance.
{¶32} The first assignment of error is overruled.
III.
{¶33} Mitchell’s assignments of error are overruled. The judgment of the Medina County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
2 While it appears that there may have been some discussion regarding whether it would be appropriate for K.R. to testify by phone, Mitchell made no mention that K.R. would be available later in the afternoon prior to resting his case. 13
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
TEODOSIO, P. J. HENSAL, J. CONCUR.
APPEARANCES:
PAUL M. GRANT, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.