[Cite as State v. Poole, 2018-Ohio-1905.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2017 CA 00076 RICHARD A. POOLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2016 CR 02108
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 14, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MATTHEW A. PETIT PROSECUTING ATTORNEY 116 Cleveland Avenue, NW RONALD MARK CALDWELL 808 Courtyard Square ASSISTANT PROSECUTOR Canton, Ohio 44702 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017 CA 00076 2
Wise, P. J.
{¶1} Defendant-Appellant Richard A. Poole appeals his conviction for felony
domestic violence in the Court of Common Pleas, Stark County. Appellee is the State of
Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On November 4, 2016, officers from the Canton City Police Department
were dispatched to a reported disturbance at a residence in the 1200 block of 10th Street
N.W. The two responding officers, upon arrival, observed visible injuries on the person
of Jennifer Z., appellant’s former girlfriend and the mother of four of his children. Jennifer
told the officers that appellant had physically assaulted her, as further discussed infra.
{¶3} Annie Poole, appellant’s mother, lived at the aforesaid residence. She told
the officers that she had to physically intervene during the struggle between Jennifer and
appellant.
{¶4} Appellant had an odor of alcoholic beverage about his person, but when he
came upon the officers, he was generally cooperative with them and did not try to flee.
Tr. at 156-157. However, appellant made no admissions to hitting or harming Jennifer.
{¶5} On December 12, 2016, Appellant Poole was indicted on one count of
domestic violence (R.C. 2919.25(A)/(D)(4)), a felony of the third degree (based on an
allegation of appellant having two or more prior domestic violence convictions). He
subsequently entered a plea of not guilty.
{¶6} Appellant filed for discovery and a bill of particulars on December 23, 2016.
Counsel for appellant filed a request for a competency evaluation on January 9, 2017. Stark County, Case No. 2017 CA 00076 3
{¶7} At a hearing on March 27, 2017, appellant and the State stipulated to a
competency report that had been finalized on February 23, 2017. The trial court adopted
same, and appellant was thus found competent to stand trial.
{¶8} The matter proceeded to a jury trial on April 18, 2017. Although Jennifer,
the victim, and Annie, appellant’s mother, both testified to versions of events varying
from what they had initially told the police, the jury found appellant guilty of domestic
violence as charged after hearing the evidence.
{¶9} On April 25, 2017, appellant was sentenced inter alia to thirty months in
prison.
{¶10} On May 4, 2017, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶11} “I. THE APPELLANT’S CONVICTION WAS AGAINST THE SUFFICIENCY
AND MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶12} In his sole Assignment of Error, appellant argues his conviction for felony
domestic violence was against the sufficiency and manifest weight of the evidence. We
disagree.
Sufficiency of the Evidence
{¶13} In reviewing a claim of insufficient evidence, “[t]he 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus. It is well-established that the State bears the burden of Stark County, Case No. 2017 CA 00076 4
establishing each and every element of a charged crime and must do so with proof
beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-
15, 2010 WL 27862, ¶ 11.
{¶14} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
{¶15} The record in the case sub judice reveals Officer Brandon Schmidt saw
Jennifer, the victim, standing outside when he arrived. He observed a facial contusion
on Jennifer and “some kind of a hand marks around her neck.” Tr. at 153. The officer
also described her as cooperative and sober, with no indicators of substance use. Id.
Officer Schmidt’s partner, Officer Eric Lee, added that he observed fresh “bruising and
swelling” around Jennifer’s right eye. Tr. at 162-163. Officer Lee also testified that
although Jennifer did not seek treatment at the hospital on the evening in question, she
wrote out a written witness statement and a domestic violence form for the officers. She
therein reported that appellant had choked her and punched her in the eye, and that
Annie Poole, appellant’s mother, had intervened and grabbed appellant. Other than
appellant and Annie, Jennifer did not report the involvement of any other adult in the
incident at that time.
{¶16} The officers also testified to the presence of Annie Poole, who was inside
the residence. Although Officer Lee did not have direct interaction with Annie at that time,
Officer Schmidt also described her as cooperative and sober. Tr. at 155, 165.
{¶17} Furthermore, the jury viewed footage from Officer Schmidt’s POV on-person
camera, showing Jennifer stating to the officers at the scene that appellant had punched
and choked her, and also that Annie, appellant’s mother, had tried to break up the Stark County, Case No. 2017 CA 00076 5
struggle. The footage additionally showed Annie telling the officers that she had to pull
her son off of Jennifer.
{¶18} The jurors also heard a recording of Jennifer’s 911 call made on the night
in question, during which appellant is identified as the person engaging in the assault.
{¶19} In the case sub judice, there appears no dispute that Jennifer was a family
or household member under the statute or that she was physically harmed. As
summarized above, upon review of the record and transcript in a light most favorable to
the prosecution, we find that reasonable jurors could have found appellant guilty beyond
a reasonable doubt of the offense of domestic violence as charged.
Manifest Weight of the Evidence
{¶20} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting
of a new trial “should be exercised only in the exceptional case in which the evidence
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[Cite as State v. Poole, 2018-Ohio-1905.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2017 CA 00076 RICHARD A. POOLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2016 CR 02108
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 14, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO MATTHEW A. PETIT PROSECUTING ATTORNEY 116 Cleveland Avenue, NW RONALD MARK CALDWELL 808 Courtyard Square ASSISTANT PROSECUTOR Canton, Ohio 44702 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2017 CA 00076 2
Wise, P. J.
{¶1} Defendant-Appellant Richard A. Poole appeals his conviction for felony
domestic violence in the Court of Common Pleas, Stark County. Appellee is the State of
Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On November 4, 2016, officers from the Canton City Police Department
were dispatched to a reported disturbance at a residence in the 1200 block of 10th Street
N.W. The two responding officers, upon arrival, observed visible injuries on the person
of Jennifer Z., appellant’s former girlfriend and the mother of four of his children. Jennifer
told the officers that appellant had physically assaulted her, as further discussed infra.
{¶3} Annie Poole, appellant’s mother, lived at the aforesaid residence. She told
the officers that she had to physically intervene during the struggle between Jennifer and
appellant.
{¶4} Appellant had an odor of alcoholic beverage about his person, but when he
came upon the officers, he was generally cooperative with them and did not try to flee.
Tr. at 156-157. However, appellant made no admissions to hitting or harming Jennifer.
{¶5} On December 12, 2016, Appellant Poole was indicted on one count of
domestic violence (R.C. 2919.25(A)/(D)(4)), a felony of the third degree (based on an
allegation of appellant having two or more prior domestic violence convictions). He
subsequently entered a plea of not guilty.
{¶6} Appellant filed for discovery and a bill of particulars on December 23, 2016.
Counsel for appellant filed a request for a competency evaluation on January 9, 2017. Stark County, Case No. 2017 CA 00076 3
{¶7} At a hearing on March 27, 2017, appellant and the State stipulated to a
competency report that had been finalized on February 23, 2017. The trial court adopted
same, and appellant was thus found competent to stand trial.
{¶8} The matter proceeded to a jury trial on April 18, 2017. Although Jennifer,
the victim, and Annie, appellant’s mother, both testified to versions of events varying
from what they had initially told the police, the jury found appellant guilty of domestic
violence as charged after hearing the evidence.
{¶9} On April 25, 2017, appellant was sentenced inter alia to thirty months in
prison.
{¶10} On May 4, 2017, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶11} “I. THE APPELLANT’S CONVICTION WAS AGAINST THE SUFFICIENCY
AND MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶12} In his sole Assignment of Error, appellant argues his conviction for felony
domestic violence was against the sufficiency and manifest weight of the evidence. We
disagree.
Sufficiency of the Evidence
{¶13} In reviewing a claim of insufficient evidence, “[t]he 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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus. It is well-established that the State bears the burden of Stark County, Case No. 2017 CA 00076 4
establishing each and every element of a charged crime and must do so with proof
beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-
15, 2010 WL 27862, ¶ 11.
{¶14} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
{¶15} The record in the case sub judice reveals Officer Brandon Schmidt saw
Jennifer, the victim, standing outside when he arrived. He observed a facial contusion
on Jennifer and “some kind of a hand marks around her neck.” Tr. at 153. The officer
also described her as cooperative and sober, with no indicators of substance use. Id.
Officer Schmidt’s partner, Officer Eric Lee, added that he observed fresh “bruising and
swelling” around Jennifer’s right eye. Tr. at 162-163. Officer Lee also testified that
although Jennifer did not seek treatment at the hospital on the evening in question, she
wrote out a written witness statement and a domestic violence form for the officers. She
therein reported that appellant had choked her and punched her in the eye, and that
Annie Poole, appellant’s mother, had intervened and grabbed appellant. Other than
appellant and Annie, Jennifer did not report the involvement of any other adult in the
incident at that time.
{¶16} The officers also testified to the presence of Annie Poole, who was inside
the residence. Although Officer Lee did not have direct interaction with Annie at that time,
Officer Schmidt also described her as cooperative and sober. Tr. at 155, 165.
{¶17} Furthermore, the jury viewed footage from Officer Schmidt’s POV on-person
camera, showing Jennifer stating to the officers at the scene that appellant had punched
and choked her, and also that Annie, appellant’s mother, had tried to break up the Stark County, Case No. 2017 CA 00076 5
struggle. The footage additionally showed Annie telling the officers that she had to pull
her son off of Jennifer.
{¶18} The jurors also heard a recording of Jennifer’s 911 call made on the night
in question, during which appellant is identified as the person engaging in the assault.
{¶19} In the case sub judice, there appears no dispute that Jennifer was a family
or household member under the statute or that she was physically harmed. As
summarized above, upon review of the record and transcript in a light most favorable to
the prosecution, we find that reasonable jurors could have found appellant guilty beyond
a reasonable doubt of the offense of domestic violence as charged.
Manifest Weight of the Evidence
{¶20} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting
of a new trial “should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶21} Even though a manifest weight analysis may involve an appellate court's
consideration of credibility (see State v. Sanders, 76 N.E.3d 468, 2016–Ohio–7204 (5th
Dist.), ¶ 38), the weight to be given to the evidence and the credibility of the witnesses
are primarily issues for the trier of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d Stark County, Case No. 2017 CA 00076 6
182, 552 N.E.2d 180). Furthermore, this Court has previously expressed its awareness
“of the troubling phenomenon of recantation of testimony by persons involved in
domestic violence situations.” See State v. Manzell, 5th Dist. Stark No. 2006CA00258,
2007-Ohio-4076, ¶ 22.
{¶22} During the trial, both Jennifer and Annie were declared to be court’s
witnesses. See Tr. at 177, 215. Although never mentioned in her verbal and written
reports to the police, Jennifer testified at trial that on the night in question, she became
upset that appellant had left the house and returned in the company of another female.
Jennifer did not provide a name, but she claimed this person was a white female with
curly hair, in her late twenties or early thirties, and she disparagingly described her as
“fat and ugly.” Tr. at 177-178. Jennifer told the jury that “ *** at one point I had got up and
walked like towards him, and me and her started like tussling around and he tried to
break us up.” Tr. at 175-176. She stated that the unnamed female had hit her, “but at the
time I thought it was [appellant] that hit me.” Tr. at 176.
{¶23} Jennifer also testified that she had been drinking “quite a lot” starting in the
afternoon on November 4, 2016, consuming beer and liquor. Tr. at 175. When shown
portions of the POV video and asked why she wasn’t slurring her words at the scene,
Jennifer replied: “I guess I am a good drunk.” Tr. at 186.
{¶24} Jennifer also denied on the witness stand having any contact with appellant
after the incident in question. The State nonetheless presented four recorded telephone
jail calls between appellant and Jennifer. She attempted to explain these calls by
asserting it was her teenage daughter, and not her, on the phone recordings, even
though a frequent subject of the conversations was the assault incident. Jennifer had no Stark County, Case No. 2017 CA 00076 7
explanation for the similarities between a version of events appellant appeared to be
suggesting in one of the calls and her trial testimony. See Tr. at 187, 189-194; State’s
Exhibits 8 & 9.
{¶25} Annie Poole's trial testimony also differed from her statements to police on
November 4, 2016. Annie testified that appellant, her son, had come to the house with a
woman she didn’t know. Annie stated she could not describe this woman because she
hadn’t paid attention, other than recalling she may have been white. Annie made no
mention of intervening in the argument that ensued, stating that she instead went
upstairs to the bathroom. She told the jury she didn't remember telling the police that she
had to pull her son off of Jennifer, as she was very intoxicated at the time. See Tr. at
212-220.
{¶26} Upon review, we find the jury, in implicitly rejecting the recantation testimony
by Jennifer and Annie on the witness stand vis-à-vis the officers’ recollections and the
audio/video evidence, did not clearly lose its way and create a manifest miscarriage of
justice requiring that appellant's conviction for domestic violence be reversed and a new
trial ordered. Stark County, Case No. 2017 CA 00076 8
{¶27} Appellant's sole Assignment of Error is therefore overruled.
{¶28} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, P. J.
Gwin, J., and
Baldwin, J., concur.
JWW/d 0424