State v. Polasky

2012 Ohio 3293

Opinion

[Cite as State v. Polasky, 2012-Ohio-3293.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2012-CA-9 AMANDA POLASKY : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge Municipal Court, Case No. 11CRB01145

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 18, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES SKELTON RONALD COUCH 309 Main Street 121 West Eighth Street Coshocton, OH 43812 Cambridge, OH 43725 [Cite as State v. Polasky, 2012-Ohio-3293.]

Gwin, P.J.

{¶1} Defendant Amanda Polasky appeals a judgment of the Cambridge

Municipal Court of Guernsey County, Ohio, which convicted and sentenced her for

menacing, a fourth degree misdemeanor, after a trial to the bench. Appellant assigns a

single error to the trial court:

{¶2} “I. THE CONVICTION WAS AGAINST THE SUFFICIENCY AND

MANIFEST WEIGHT OF THE EVIDENCE.”

{¶3} In State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2d 541 (1997), the

Ohio Supreme Court found the concepts of manifest weight and legal sufficiency are

both quantitatively and qualitatively different. Id., syllabus, paragraph 2.

{¶4} The Thompkins court defined sufficiency of the evidence as a term of art

referring to the legal standard courts must apply to determine whether the case may go

to the jury, or whether the evidence is legally sufficient to support the jury’s verdict. The

Supreme Court explained sufficiency is a test of adequacy, and is a question of law.

{¶5} On the other hand, manifest weight of the evidence concerns the greater

amount of credible evidence offered at trial to support one side of the issue rather than

the other. The Supreme Court cautioned that weight is not a question of sheer

mathematics but rather, how effective the evidence is in inducing belief in the mind of

the trier of fact.

{¶6} At trial, the State presented the testimony of Christopher McCall, Leonard

Polasky, and Liz McCune. At the time of the incident appellant and Polasky were in the

process of divorce. Christopher McCall testified he attended a Labor Day picnic at the

home of Leonard Polasky. He testified appellant and some other persons arrived in a Guernsey County, Case No. 2012-CA-9 3

car and were screaming. He testified specifically Amanda shouted “you are going to jail

mother fucker.” McCall testified he was unsure to whom this statement was directed.

{¶7} Leonard Polasky testified he had told the appellant he didn’t want her to

come to his home and their divorce orders specified they were to meet at the police

station to exchange the children for visitation. Polasky testified appellant did not come

onto his property, but was in a car on the street in front of his home. She, her mother,

and other persons were in the car yelling and screaming profanities and racial slurs. He

testified the people in the car were trying to catch him drinking alcohol, so they could get

him “violated” and put in prison. He testified appellant also shouted something like “I

am going to get you next too” which Polasky believed was directed at McCune, his

girlfriend, because she was standing next to him. Polasky testified their pending divorce

was very ugly and there was a big custody battle.

{¶8} Polasky testified there was no question in his mind that appellant was the

person who had uttered the threat to McCune. He testified he was familiar with

appellant’s voice, as well as her mother and father’s voices, and could tell them apart

even when they were shouting. Polasky also testified appellant had previously been

arrested on an assault charge stemming from an incident at McCune’s house. The

charge was subsequently reduced to disorderly conduct.

{¶9} McCune testified appellant does not like her, and on the day in question,

shouted at her “you are going to get your ass beaten next, bitch”. She testified it was a

woman’s voice and the only women in the vehicle were appellant and her mother. She

testified she believed it was a threat to cause her physical harm and believed it was

appellant who had made the threat. Guernsey County, Case No. 2012-CA-9 4

{¶10} Appellant presented the testimony of her mother, who indicated she had

never witnessed her daughter threaten anyone. She also testified during the incident

she was operating a video camera in an attempt to show Polasky drinking alcohol.

{¶11} Appellant testified she was not the person who had threatened McCune.

Appellant denied even seeing McCune on the day in question. She testified her father

was the person who threatened to put Polasky in jail.

{¶12} Both appellant and her mother testified the video was an accurate

representation of what occurred. Appellant then played the video for the court. On

closing, the State argued appellant’s voice could be heard on the video shouting

threats. Appellant responded the various witnesses’ testimony contained serious

disagreements about what had occurred, and it would have been difficult for anyone to

distinguish who was shouting what. The court made no finding regarding the video.

{¶13} We find the evidence was legally sufficient to support the trial court’s

verdict as a matter of law, and in addition, we find the court’s decision is supported by

the weight of the evidence.

{¶14} The assignment of error is overruled. Guernsey County, Case No. 2012-CA-9 5

{¶15} For the foregoing reasons, the judgment of the Cambridge Municipal

Court, Guernsey County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. JULIE A. EDWARDS

WSG:clw 0706 [Cite as State v. Polasky, 2012-Ohio-3293.]

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : AMANDA POLASKY : : : Defendant-Appellant : CASE NO. 2012-CA-9

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Cambridge Municipal Court, Guernsey County, Ohio, is affirmed. Costs to appellant.