[Cite as State v. Morales-Gutierrez, 2023-Ohio-3817.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29681 : v. : Trial Court Case No. 22-CRB-3977 : JAIRO MORALES-GUTIERREZ : (Criminal Appeal from Municipal Court) : Appellant : :
...........
OPINION
Rendered on October 20, 2023
ROBERT L. SCOTT, Attorney for Appellant
ALISSA C. SCHRINER, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Defendant-appellant Jairo Morales-Gutierrez appeals from his conviction for
domestic violence. For the reasons stated below, we affirm.
I. Factual and Procedural History
{¶ 2} On November 12, 2022, Dayton police officers were dispatched to a -2-
residence on Findlay Street on a report of an assault. Upon arriving at the home, the
officers were met at the door by Marco Sandoval Ponce. Ponce led the officers upstairs
to a room. The door to the room was shut, but the officers could hear people in the room
speaking to each other. The officers announced their presence and asked the people
inside to open the door; at that point, they heard someone say something to the effect of
there was “nothing to see here.” One of the officers then opened the door. The officers
observed Diana 1 and Morales-Gutierrez in the room. Diana was on the floor. The
officers separated the pair before interviewing them. It was determined that the two were
living together, as boyfriend and girlfriend, in the rented room.
{¶ 3} On November 13, 2022, Morales-Gutierrez was charged by criminal
complaint with one count of domestic violence in violation of R.C. 2919.25(A) and one
count of assault in violation of R.C. 2903.13(A). Following a bench trial, he was found
guilty of both charges. At sentencing, the trial court merged the offenses, and the State
elected to proceed on the domestic violence conviction. Thereafter, the trial court
sentenced Morales-Gutierrez to a jail term of 180 days with credit for 31 days served.
The remaining jail time was suspended, and Morales-Gutierrez was placed on one year
of supervised probation.
{¶ 4} Morales-Gutierrez appeals.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 5} The sole assignment of error asserted by Morales-Gutierrez is:
1 We will refer to the victim by her first name to protect her privacy. -3-
THE GUILTY VERDICTS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND THE EVIDENCE PRESENTED WAS
INSUFFICIENT, AS A MATTER OF LAW, TO PROVE THE DEFENDANT’S
GUILT BEYOND A REASONABLE DOUBT.
{¶ 6} Morales-Gutierrez contends that his conviction was based upon insufficient
evidence and was against the manifest weight of the evidence.
{¶ 7} “[S]ufficiency is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). “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.” State v. Marshall, 191 Ohio App.3d
444, 2010-Ohio-5160, 946 N.E.2d 762, ¶ 52 (2d Dist.), quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The relevant inquiry is
whether, after viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found the crime's essential elements proven beyond a reasonable
doubt. Id.
{¶ 8} However, when an appellate court reviews whether a conviction is against
the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the [trial court as the factfinder] -4-
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A case should not be reversed as
being against the manifest weight of the evidence except “ ‘in the exceptional case in
which the evidence weighs heavily against the conviction.’ ” Id.
{¶ 9} Further, “[a]lthough sufficiency and manifest weight are different legal
concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin
No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85
N.E.3d 501, ¶ 58 (2d Dist.). As a result, a determination that a conviction is supported by
the weight of the evidence will also be dispositive of sufficiency. State v. Farra, 2d Dist.
Montgomery No. 28950, 2022-Ohio-1421, ¶ 50.
{¶ 10} Importantly, we must defer to the factfinder's decisions whether, and to what
extent, to credit the testimony of particular witnesses, given that the trier of fact sees and
hears the witnesses at trial. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). Therefore, “[t]he credibility of the witnesses and the weight
to be given to their testimony are matters for the trier of facts to resolve.” State v.
Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass,
10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “This court will not substitute its judgment
for that of the trier of fac[t] on the issue of witness credibility unless it is patently apparent
that the factfinder lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign -5-
No. 1997-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).
{¶ 11} Morales-Gutierrez was convicted of domestic violence. Domestic violence
is proscribed by R.C. 2919.25(A), which states that “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.” “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. When knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with a conscious purpose to
avoid learning the fact.” R.C. 2901.22(B). The term “physical harm to persons” is
defined by R.C. 2901.01(A)(3) as “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.”
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[Cite as State v. Morales-Gutierrez, 2023-Ohio-3817.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29681 : v. : Trial Court Case No. 22-CRB-3977 : JAIRO MORALES-GUTIERREZ : (Criminal Appeal from Municipal Court) : Appellant : :
...........
OPINION
Rendered on October 20, 2023
ROBERT L. SCOTT, Attorney for Appellant
ALISSA C. SCHRINER, Attorney for Appellee
.............
TUCKER, J.
{¶ 1} Defendant-appellant Jairo Morales-Gutierrez appeals from his conviction for
domestic violence. For the reasons stated below, we affirm.
I. Factual and Procedural History
{¶ 2} On November 12, 2022, Dayton police officers were dispatched to a -2-
residence on Findlay Street on a report of an assault. Upon arriving at the home, the
officers were met at the door by Marco Sandoval Ponce. Ponce led the officers upstairs
to a room. The door to the room was shut, but the officers could hear people in the room
speaking to each other. The officers announced their presence and asked the people
inside to open the door; at that point, they heard someone say something to the effect of
there was “nothing to see here.” One of the officers then opened the door. The officers
observed Diana 1 and Morales-Gutierrez in the room. Diana was on the floor. The
officers separated the pair before interviewing them. It was determined that the two were
living together, as boyfriend and girlfriend, in the rented room.
{¶ 3} On November 13, 2022, Morales-Gutierrez was charged by criminal
complaint with one count of domestic violence in violation of R.C. 2919.25(A) and one
count of assault in violation of R.C. 2903.13(A). Following a bench trial, he was found
guilty of both charges. At sentencing, the trial court merged the offenses, and the State
elected to proceed on the domestic violence conviction. Thereafter, the trial court
sentenced Morales-Gutierrez to a jail term of 180 days with credit for 31 days served.
The remaining jail time was suspended, and Morales-Gutierrez was placed on one year
of supervised probation.
{¶ 4} Morales-Gutierrez appeals.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 5} The sole assignment of error asserted by Morales-Gutierrez is:
1 We will refer to the victim by her first name to protect her privacy. -3-
THE GUILTY VERDICTS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND THE EVIDENCE PRESENTED WAS
INSUFFICIENT, AS A MATTER OF LAW, TO PROVE THE DEFENDANT’S
GUILT BEYOND A REASONABLE DOUBT.
{¶ 6} Morales-Gutierrez contends that his conviction was based upon insufficient
evidence and was against the manifest weight of the evidence.
{¶ 7} “[S]ufficiency is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). “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.” State v. Marshall, 191 Ohio App.3d
444, 2010-Ohio-5160, 946 N.E.2d 762, ¶ 52 (2d Dist.), quoting State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The relevant inquiry is
whether, after viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found the crime's essential elements proven beyond a reasonable
doubt. Id.
{¶ 8} However, when an appellate court reviews whether a conviction is against
the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence, the [trial court as the factfinder] -4-
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A case should not be reversed as
being against the manifest weight of the evidence except “ ‘in the exceptional case in
which the evidence weighs heavily against the conviction.’ ” Id.
{¶ 9} Further, “[a]lthough sufficiency and manifest weight are different legal
concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a
finding that a conviction is supported by the manifest weight of the evidence necessarily
includes a finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin
No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85
N.E.3d 501, ¶ 58 (2d Dist.). As a result, a determination that a conviction is supported by
the weight of the evidence will also be dispositive of sufficiency. State v. Farra, 2d Dist.
Montgomery No. 28950, 2022-Ohio-1421, ¶ 50.
{¶ 10} Importantly, we must defer to the factfinder's decisions whether, and to what
extent, to credit the testimony of particular witnesses, given that the trier of fact sees and
hears the witnesses at trial. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). Therefore, “[t]he credibility of the witnesses and the weight
to be given to their testimony are matters for the trier of facts to resolve.” State v.
Hammad, 2d Dist. Montgomery No. 26057, 2014-Ohio-3638, ¶ 13, citing State v. DeHass,
10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). “This court will not substitute its judgment
for that of the trier of fac[t] on the issue of witness credibility unless it is patently apparent
that the factfinder lost its way.” (Citation omitted.) State v. Bradley, 2d Dist. Champaign -5-
No. 1997-CA-03, 1997 WL 691510, *4 (Oct. 24, 1997).
{¶ 11} Morales-Gutierrez was convicted of domestic violence. Domestic violence
is proscribed by R.C. 2919.25(A), which states that “[n]o person shall knowingly cause or
attempt to cause physical harm to a family or household member.” “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. When knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with a conscious purpose to
avoid learning the fact.” R.C. 2901.22(B). The term “physical harm to persons” is
defined by R.C. 2901.01(A)(3) as “any injury, illness, or other physiological impairment,
regardless of its gravity or duration.”
{¶ 12} Morales-Gutierrez’s argument rests upon his claims that Diana’s testimony
was not credible. Specifically, he notes that (1) no one observed the incident; (2) Diana
was extremely intoxicated at the time of the alleged incident; (3) the responding officer
did not observe any injuries to Diana; and (3) Diana did not tell the officers that she had
been kicked by Morales-Gutierrez.
{¶ 13} At trial, Marco Sandoval Ponce testified that he rented a room to Morales-
Gutteriez and Diana. He testified that, on the date of the incident, he overheard yelling
coming from their room. When he went to the door of their room, he heard Morales-
Gutierrez insulting and cursing at Diana. He also heard a sound which he described as -6-
a “smack.” Ponce testified he then heard Diana say, “it hurts” and “please don’t hit me.”
Ponce then heard Morales-Gutierrez say, “I will slap you like I do to my ex-wife.” Ponce
testified that told Morales-Gutierrez to stop or he would call the police. According to
Ponce, Morales-Gutierrez opened the door to the room and told Ponce to “stay out of
their business.” Ponce observed Diana sitting on the floor and crying. Thereafter,
Ponce went back downstairs and called 911.
{¶ 14} Diana testified that Morales-Gutierrez became angry at her and began to
use “bad words” while accusing her of being with another man. She testified that he
became aggressive and slapped her twice on her face, causing her to fall to the floor.
She testified that he kicked her in the side of her torso while she was on the floor. She
also testified that she experienced pain from the contact. Diana admitted that she was
intoxicated at the time of the incident.
{¶ 15} The responding officer testified that Diana informed him that she had been
slapped, but he did not recall her saying that she had been kicked. However, he also
testified that he had some trouble communicating with her because she was intoxicated
and because English was not her primary language.
{¶ 16} The trial court, as the trier of fact, was entitled to “believe all, part or none
of the testimony of each witness.” (Citations omitted.) State v. Hartman, 2016-Ohio-2883,
64 N.E.3d 519, ¶ 42 (2d Dist.). We discern nothing inherently incredible in the testimony
provided by Diana and Ponce. Nor do we find anything in the responding officer’s
testimony that contradicted the events as relayed by Diana and Ponce. On this record,
we cannot conclude that the trial court, as the trier of fact, lost its way in crediting Diana’s -7-
testimony regarding being slapped and kicked as well as having experienced pain
resulting therefrom. 2 Thus, the domestic violence conviction was not against the
manifest weight of the evidence, and, as such, the conviction was supported by sufficient
evidence.
{¶ 17} Accordingly, the sole assignment of error is overruled.
III. Conclusion
{¶ 18} The judgment of the trial court is affirmed.
EPLEY, J. and HUFFMAN, J., concur.
2 This court has stated that, although we are “not prepared to hold that any discomfort,
however trivial,” qualifes as “physical harm,” “a pain-inducing blow [such as a punch to the stomach] is sufficient to satisfy the ‘physical harm’ element of [a]ssault.” State v. Hill, 2d Dist. Montgomery No. 20678, 2005-Ohio-3701, ¶ 21-22 and 34. Likewise, we conclude that a kick to the side of a person’s torso, in the absence of any evidence to contradict the victim’s claim of pain induced by that kick, is sufficient to satisfy the physical harm element of domestic violence.