State v. Mossburg

2013 Ohio 1664

• Court: Ohio Court of Appeals
• Decided: April 25, 2013
• Docket: 98769
• Status: Published

Opinion

[Cite as State v. Mossburg, 2013-Ohio-1664.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98769

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MATTHEW J. MOSSBURG DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-546276

BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 25, 2013 ATTORNEY FOR APPELLANT

Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Brian M. McDonough Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Matthew Mossburg (“Mossburg”), appeals his domestic

violence conviction. Finding no merit to the appeal, we affirm.

{¶2} In January 2011, Mossburg was charged with rape, attempted felonious

assault, domestic violence, and two counts of kidnapping. Both the attempted felonious

assault and the domestic violence charges carried a pregnant victim specification.

Mossburg waived his right to a jury trial, and the following evidence was heard during a

bench trial.

{¶3} Mossburg and the victim, Melanie Carson, lived together at a residence on

West 45th Street in Cleveland. They had been dating for about a year, and Carson was

approximately three months pregnant. According to Carson, she was pregnant with

Mossburg’s child. The couple lived with John Dunikowski, who was a life-long friend,

former boyfriend of Carson, and the father of one of Carson’s children.

{¶4} On January 10, 2011, Carson and Mossburg went to MetroHealth Medical

Center for an ultrasound appointment. Following the appointment, an argument ensued

over Mossburg’s infidelity. It was at this point, the version of events differ.

{¶5} According to Carson, after she and Mossburg arrived home from the

ultrasound, he wanted to have sex with her. Carson told him “no,” but to go “get it off

his new girlfriend.” Mossburg then forced her to have sex with him. Carson testified that although she kept saying “no,” she eventually “gave up.” Afterwards, they both got

dressed, started watching a movie, and her neighbor Mark came over. She stated that she

did not tell Mark what happened because she did not want to start a fight. However, she

testified that she called Dunikowski, who was in the downstairs apartment, and told him

to come home right away because she and Mossburg got into an argument. She stated

she did not tell Dunikowski about the rape.

{¶6} When Dunikowski arrived home, Carson stated that Mossburg put his hands

on her by punching her in the leg and arms and slamming her against the wall with his

hands around her throat while choking her. Carson testified that Dunikowski had to pull

Mossburg off her and “peel his hands off her throat.” Mossburg then called her names

and threatened to “cut the baby out of her stomach.”

{¶7} Dunikowski then told Mossburg to leave the apartment. After he left,

Carson testified that she and Dunikowski walked to the hospital that night and then went

to the police station the next day. When questioned about whether she was certain of the

times and dates of going to the hospital and police station, Carson stated she could not

remember, but “everything else was imprinted in her head.” She stated she had bruising

on her leg, and her arms bruised after the pictures were taken and after going to the

hospital.

{¶8} Mossburg testified that he suffers from mental health conditions and is

currently on medication. He stated that on January 10 after he and Carson left the

hospital, an argument ensued over Mossburg cheating on Carson with a girl named “Melissa.” Mossburg stated that the argument started because there were “hickeys” on

his neck and Melissa had sent him a text message that Carson discovered. After the

argument, Mossburg testified that he apologized to Carson for being unfaithful and

Carson made dinner for them and the neighbor, Mark. He testified that afterwards they

had “make-up sex,” which Mossburg stated was consensual. He stated that after having

sex, they were watching a movie, but got into another argument when Melissa called his

cell phone. According to Mossburg, Carson pushed him. He testified that he was told

to leave when Dunikowski came home. Mossburg admitted he was angry, but denied

putting his hands on Carson, raping her, or holding a knife to her while threatening her.

{¶9} While his video tape interrogation with police revealed that the fight over

infidelity involved a girl named “Christine,” the pertinent facts involving the incident on

January 10 were substantially similar to his testimony. At trial, Mossburg admitted that

while he is confused about the girls, he was not confused about Carson and whether he hit

her or forced her to have sex.

{¶10} Dunikowski testified that he has known Carson since they were both kids

and he and Carson began living together and dating in 2005. Even though their

relationship fell apart in 2006, they still lived together. He testified that Carson and

Mossburg lived with him, but he paid all the bills, including the rent. He stated

Mossburg bought food for the household, and Carson did not contribute financially to the

household. {¶11} Dunikowski testified that prior to January 10, 2011, there had been no major

incidents between Mossburg and Carson. However, on January 10, he received a voice

mail from Carson that stated she had been raped. Even so, he stated he did not call the

police. He testified that he arrived home to Mossburg and Carson screaming at each

other — arguing about “the rape or something else.” He stated he saw Mossburg

pushing and grabbing Carson and pinning her against the wall by her throat with his hand.

He stated that Mossburg did not punch Carson. He further stated that Mossburg had a

knife threatening to “cut the baby out of [Carson’s] stomach.”

{¶12} Dunikowski testified that he and Carson went to the Second District police

station the following day or a couple of days later to file a report. He stated that he

played the voice mail that he received from Carson for the police, which they recorded.

He admitted he did not tell the police about the knife or the rape during his statement with

police.

{¶13} During his testimony, Dunikowski identified a picture he took of Carson’s

leg, which depicted a slight bruise on her shin. He testified that he took the picture after

they left the police station. He stated that he did not know how the bruise occurred. He

further stated that he did not see any bruising on Carson’s neck or arms. According to

Dunikowski, Carson was pregnant during this incident with his child, not Mossburg’s.

{¶14} Detective Robert Ford testified that Carson and Dunikowski initially went

to the Second District police station on January 12 to report the incident. However, he

was assigned to the case on January 14 and on this day he spoke with both Carson and Dunikowski and received statements from them. He stated that although Carson and

Dunikowski had some “restricted mental functioning,” they were able to verbalize and

communicate without difficulty. He stated that he took their statements, but did not

recall whether he listened to any voice mails. He indicated if he had, he would have

recorded them. Additionally, he testified that he did not see any signs of trauma or

photograph any trauma to Carson. If he had seen any injury, he would have

photographed it. However, he did state that the initial report noted “bruising” and that he

did not conduct a head to toe examination for injuries. Further, he stated that when he

went to the apartment, Carson was unable to identify any particular knife that was used in

the altercation.

{¶15} Ford also conducted an interview with Mossburg on January 18, which was

videotaped and admitted into evidence. According to Ford, Mossburg was polite,

cooperative, and concerned about the situation when he spoke with him.

{¶16} Jennifer Beigie, MetroHealth emergency room nurse and SANE nurse

testified she treated Carson for the alleged sexual assault. According to Beigie, Carson

called the nurse line on January 12 at 12:44 p.m. and stated that her boyfriend tried to

choke her, that her throat still hurt, she was having difficulty breathing, and she was

three-months pregnant. According to Beigie, Carson was advised to come into the

hospital for an evaluation and treatment. Beigie testified that she saw Carson on January

12 at 10:50 p.m. As part of her evaluation, a rape kit and a “head to toe” examination

was performed. According to Beigie, she noted some redness to Carson’s arms but no other injuries or trauma to any other area of the body was noted. Beigie admitted she did

not see any bruising on Carson’s leg, but stated that bruising could become visible later.

She further admitted that she could not tell when the redness on Carson’s arms occurred

or the cause, but stated that the redness was consistent with what Carson told her.

{¶17} The trial court found Mossburg not guilty of rape, kidnapping, and

attempted felonious assault, but guilty of domestic violence and the attendant pregnant

victim specification. Mossburg was sentenced to 12 months in jail, with credit for time

served.

{¶18} Mossburg now appeals, raising as his sole assignment of error that his

conviction for domestic violence is against the manifest weight of the evidence. He

contends that the evidence presented by the state to support domestic violence lacked

credibility.

{¶19} When a defendant asserts that a 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 factfinder 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, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

A manifest weight challenge questions whether the prosecution met its burden of

persuasion. State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). {¶20} In this case, Mossburg was convicted of domestic violence in violation of

R.C. 2919.25(A), which provides that no person shall knowingly cause or attempt to

cause physical harm to a family or household member. “Physical harm” is defined as

“any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” R.C. 2901.01(A)(3). The trial court in finding Mossburg guilty of domestic

violence stated that “there is evidence in the record to support minor injuries.”

{¶21} On appeal Mossburg challenges the weight of the evidence by asserting that

neither Carson nor Dunikowski were credible and their testimonies were inconsistent.

Additionally, it is asserted that his conviction is against the manifest weight of the

evidence because Carson did not report the incident to the police or go to the hospital

until two days after the alleged attack. Finally, Mossburg contends that although the

nurse examiner saw redness on Carson’s arms, the nurse did not know the cause of the

redness and did not notice any bruising to Carson.

{¶22} While all of these assertions are true, the trial judge heard all the testimony

and had the opportunity to weigh the credibility of the witnesses. Under well-settled

precedent, we are constrained to adhere to the principle that the credibility of witnesses

and the weight to be given to their testimony are matters for the trier of fact to resolve.

See State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). Although we

consider the credibility of witnesses in a manifest weight challenge, we are mindful that

the determination regarding witness credibility rests primarily with the trier of fact

because the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures, and voice inflections — observations that are critical to determining

a witness’s credibility. State v. Clark, 8th Dist. No. 94050, 2010-Ohio-4354, ¶ 17, citing

State v. Hill, 75 Ohio St.3d 195, 205, 1996-Ohio-222, 661 N.E.2d 1068, and State v.

Antill, 176 Ohio St. 61, 66, 197 N.E.2d 548 (1964). The trier of fact is free to accept or

reject any or all the testimony of any witness. State v. Smith, 8th Dist. No. 93593,

2010-Ohio-4006, ¶ 16. As this court has previously recognized, a defendant is not

entitled to a reversal on manifest-weight grounds merely because inconsistent evidence

was presented at trial. State v. Gaughan, 8th Dist. No. 90523, 2009-Ohio-955, ¶ 32,

citing State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958 at ¶ 21.

{¶23} In this case, there is no dispute that an altercation occurred between

Mossburg and Carson on January 10, 2011. Mossburg testified that Carson came at him

and that he did not put his hands on her; whereas, Carson and Dunikowski both testified

that Mossburg threatened Carson with a knife, pushed her against the wall, and choked

her. Carson also testified that Mossburug punched her in the leg.

{¶24} While the testimonies of both Carson and Dunikowski contained some

inconsistencies, the record provides that consistent throughout the testimony of Carson

was that Mossburg punched her in the leg. The photograph of Carson depicted a slight

bruise to her shin. Dunikowski testified that he took the picture the same day that they

went to the police. However, it is unclear from the testimony whether the photograph

was taken on January 12 when they went to the Second District, or on January 14 when

they met with Detective Ford. Although the MetroHealth nurse examiner did not note any bruising on Carson, she testified that bruising could develop later. Moreover,

Detective Ford stated that the initial RMS report noted “bruising.”

{¶25} Finally, the nurse examiner testified that she observed redness on the upper

arms of Carson. Although the nurse admitted that she did not know the cause of the

redness, the location of the redness is consistent with Carson’s testimony that Mossburg

grabbed her and pushed her against the wall.

{¶26} Based on the record before us, we cannot say that this is the exceptional case

where the court clearly lost its way in finding Mossburg guilty of domestic violence. The

trial court’s verdict demonstrates that it considered all the physical evidence, weighed the

testimony of all the witnesses, and discounted and accepted testimony where the court

determined it was appropriate. Accordingly, Mossburg’s assignment of error is

overruled.

{¶27} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR