State v. Rimi

2022 Ohio 4117

Opinion

[Cite as State v. Rimi, 2022-Ohio-4117.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29414 : v. : Trial Court Case No. 2021-CR-3398 : EDWARD RIMI : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 18th day of November, 2022.

MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409 Attorney for Defendant-Appellant

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LEWIS, J. -2-

{¶ 1} Defendant-Appellant Edward Rimi appeals from his conviction for domestic

violence. Rimi contends that the jury’s verdict was against the manifest weight of the

evidence and was not supported by sufficient evidence. Rimi also contends that the

evidence presented by the State of a prior conviction for domestic violence was

insufficient to elevate his conviction from a misdemeanor to a felony. For the reasons

that follow, we affirm the trial court’s judgment of conviction.

I. Facts and Course of Proceedings

{¶ 2} On October 21, 2021, a Montgomery County grand jury indicted Rimi on one

count of domestic violence in violation of R.C. 2919.25(A) and one count of resisting arrest

in violation of R.C. 2921.33(A). The two counts in the indictment arose from an incident

on October 12, 2021, involving Rimi and his girlfriend, M.L.1 The indictment also alleged

that Rimi had previously pled guilty to or been convicted of domestic violence on January

12, 1999.

{¶ 3} On December 6, 2021, Rimi filed a “Motion To Strike/Motion In Limine

Regarding Prior Conviction.” In this motion, Rimi contended that his prior conviction had

been without counsel or an effective waiver of counsel and therefore had been

constitutionally infirm. Attached as Exhibit A to this motion was an affidavit of Rimi that

stated, in part, “I have no recollection of having had the benefit of counsel when a plea

was entered in Dayton Municipal Court Case No. 1998-CRB-15639.” Attached as

Exhibit B to the motion was a certified copy of the conviction in Case Number 98 CRB

1 To protect the privacy of the victim, we will refer to her as M.L. -3-

15639 in the Dayton Municipal Court. The trial court denied the motion.

{¶ 4} A jury trial was held on January 12 and 13, 2022. Jay Wheeler testified first

for the State. He is a supervisor at the Regional Dispatch Center of the Montgomery

County Sheriff’s Department. He testified about the authenticity of the 911 emergency

call M.L. placed at 2:09 p.m. on October 12, 2021. Trial Transcript, p. 35-36, 39.

{¶ 5} M.L. testified next for the State. As of October 12, 2021, she had lived with

Rimi and their 3-year-old daughter on Gummer Avenue in Dayton for over a year. M.L.

and Rimi had been dating on and off for approximately six years. Id. at 41, 43. On the

afternoon of October 12, 2021, Rimi started screaming and yelling at her inside the

residence. Id. at 48-50. He said that she was worthless and had ruined his life and that

he was better off without her. Id. at 51. Rimi began throwing toys at her. One of the

objects, a hard plastic-like ball, hit her above her eye and caused her to bleed. Id. at 48-

50. According to M.L., Rimi also kicked her in the leg with his steel-toed boots and

punched her in the ribs and the back of her head. Id. at 48-50. Rimi then left the house.

M.L. called 911 about two or three minutes after Rimi left the house. Id. at 50-51, 54.

At that moment, she felt embarrassed, helpless, and nervous. Id. at 54.

{¶ 6} M.L. was shown several pictures taken of the room in which the incident

happened. She testified that all the items on the floor of the bedroom were items that

Rimi had thrown at her. Id. at 69-70. On cross-examination, M.L. testified that she had

not gone to the hospital after the incident or received medical treatment. Id. at 67-68.

M.L. was able to stop the bleeding herself using a bed sheet. Id. at 69.

{¶ 7} City of Dayton Police Officer Paul Harris testified next for the State. He had -4-

responded to the 911 call on October 12, 2021. When he arrived at the residence, M.L.

had a gash above her eye, blood on her and her clothes, and appeared frightened and

scared. Id. at 78-80. Officer Harris was in the home for only three or four minutes

before Rimi entered the residence from the rear door. At that time, M.L. took her

daughter out the front door. Id. at 81. Rimi came into the house yelling, and Officer

Harris readied his taser. When Rimi entered, Officer Harris ordered him to his knees.

Rimi put his hands partially behind his back but did not comply with the order to drop to

his knees. Officer Harris took this as a sign that Rimi was aggressive and wanted to

fight, so he tased Rimi. Id. at 83-86. Shortly after tasing Rimi, another police officer

arrived at the scene, and they arrested Rimi. Id. at 98.

{¶ 8} Detective Daniel O’Neill with the City of Dayton Police Department testified

last for the State. He had been assigned to be the lead detective on the case. Based

on the information he reviewed, he determined that Rimi had a prior domestic violence

conviction. Id. at 133. He went to the Dayton Municipal Court and got a certified copy

of this prior conviction, which was admitted into evidence as State’s Exhibit 14. Id. at

133-135. Detective O’Neill also reviewed the camera recording from the police cruiser,

noting that Rimi referred to the residence as “my house” and the child as “my daughter.”

Id. at 146, 150-151, 157-158. On cross-examination, Detective O’Neill conceded that he

had not interviewed any neighbors about the incident. Id. at 162-164.

{¶ 9} Rimi testified on his own behalf. Id. at 172-224. He stated that he had

never pleaded guilty to or been convicted of domestic violence. Id. at 175, 202. Rimi

conceded that his name and social security number on Exhibit 14 were correct. Id. at -5-

201. He testified that the original charge in the 1999 case had been for domestic

violence, a first-degree misdemeanor, but he had pled guilty to a reduced, fourth-degree

misdemeanor charge. Rimi believed that the fourth-degree misdemeanor was

“disorderly conduct or something like that.” Id. at 176, 203. Rimi stated that he would

have remembered if he had pled guilty to a domestic violence charge. Id. at 223. He

agreed that Exhibit 14 noted a fourth-degree misdemeanor of domestic violence. Id. at

219-220.

{¶ 10} Rimi testified that he had lived with M.L. and their daughter on October 12,

2021. Id. at 178. He had been fighting verbally with M.L. that day. Eventually, he

kicked the toy rack and the toys scattered everywhere. Then Rimi picked up some of

the toys and started throwing them at M.L. Id. at 180-181. He did not believe his throw

hit M.L. directly, but it may have hit her on a ricochet off the wall. Id. at 181. Rimi

conceded that he knew throwing things at someone could cause an injury but contended

that he had not wanted to hurt M.L. Id. at 181, 192. He agreed that he hurt M.L. with

the toy and that she had not been bleeding or injured before he hit her with the toy. Id.

at 192-193.

{¶ 11} The jury found Rimi not guilty of resisting arrest but guilty of domestic

violence. Also, the jury found that Rimi previously had been convicted of a domestic

violence charge. The trial court sentenced Rimi to 12 months in prison. Rimi filed a

timely notice of appeal.

II. Manifest Weight and Sufficiency of the Evidence -6-

{¶ 12} Rimi’s sole assignment of error states:

THE JURY’S VERDICTS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 13} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence

to support a conviction, the relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

Id.

{¶ 14} In contrast to the sufficiency of the evidence standard, “a weight of the

evidence argument challenges the believability of the evidence and asks which of the

competing inferences suggested by the evidence is more believable or persuasive.”

Wilson at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight

of the evidence, the appellate court must review the entire record, weigh the evidence

and all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such -7-

a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

{¶ 15} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder's decisions whether, and to what extent, to credit the testimony of

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug.

22, 1997). The fact that the evidence is subject to different interpretations does not

render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

{¶ 16} Rimi was convicted of domestic violence in violation of R.C. 2919.25(A),

which provides 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.” R.C. 2901.22(B). The term “physical harm” is

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

duration.” R.C. 2901.01(A)(3). The term “family or household member” includes “a

person living as a spouse.” R.C. 2919.25(F)(1)(a)(i). “Person living as a spouse” is

someone who “has cohabited with the offender within five years prior to the date of the

alleged commission of the act in question.” R.C. 2919.25(F)(2).

{¶ 17} The evidence presented at the trial established that Rimi had committed

domestic violence in violation of R.C. 2919.25(A). Both he and M.L. confirmed that they -8-

had been living together at the time of the offense, along with their child. Further, both

testified that Rimi had thrown objects at M.L. that resulted in her being physically harmed.

Although Rimi testified that he had not intended to injure her, he agreed that he had known

that throwing objects at someone could result in an injury. M.L. also testified that Rimi

had kicked her and punched her. Moreover, the pictures admitted into evidence at trial

showed the physical injury suffered by M.L. Based on the record before us, we conclude

that the guilty verdict for domestic violence was supported by sufficient evidence and was

not against the manifest weight of the evidence.

{¶ 18} Rimi next contends that the jury incorrectly found that he had a prior

domestic violence conviction. Rimi explains:

The purported prior Domestic Violence conviction does not indicate

that Rimi was represented by counsel or that he was [in] fact convicted of

Domestic Violence (something he denied on the stand). Further, there was

a line for Defendant’s signature but it is blank. The prior conviction was not

valid and/or did not prove beyond a reasonable doubt that Rimi had a prior

Domestic Violence conviction.

Appellant’s Brief, p. 9.

{¶ 19} The State disagrees. According to the State, there was overwhelming

evidence presented at trial to connect Rimi to the prior conviction for domestic violence.

Appellee’s Brief, p. 10. Further, Rimi failed to establish, by a preponderance of the

evidence, his prima facie case that his prior conviction had been constitutional infirm. Id.

at 11. Instead, the State contends that Rimi did nothing more than make a conclusory -9-

statement that he did not remember being represented by counsel or pleading guilty to a

domestic violence charge. Id.

{¶ 20} The dispute over whether Rimi previously had been convicted of domestic

violence was relevant to whether Rimi’s domestic violence conviction in this case was a

misdemeanor or a felony. Whoever violates R.C. 2919.25(A) is guilty of domestic

violence, which is a misdemeanor of the first degree. R.C. 2919.25(D). However, if the

offender previously pled guilty to or was convicted of domestic violence, then a violation

of this section is a felony of the fourth degree. R.C. 2919.25(D)(3).

{¶ 21} In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024,

¶ 9, the Ohio Supreme Court held that “[a] conviction obtained against a defendant who

is without counsel, or its corollary, an uncounseled conviction obtained without a valid

waiver of the right to counsel, has been recognized as constitutionally infirm.” (Citations

omitted.) Generally, a past conviction cannot be attacked in a subsequent case; there

is, however, “a limited right to collaterally attack a conviction when the state proposes to

use the past conviction to enhance the penalty of a later criminal offense.” Id.

{¶ 22} R.C. 2945.75(B) lays out the procedure for situations in which the State is

using a prior conviction in an attempt to enhance an offense. R.C. 2945.75(B)(1)

provides “[w]henever in any case it is necessary to prove a prior conviction, a certified

copy of the entry of judgment in such prior conviction together with evidence sufficient to

identify the defendant named in the entry as the offender in the case at bar, is sufficient

to prove such prior conviction.” Further, R.C. 2945.75(B)(3) provides that, “[i]f the

defendant claims a constitutional defect in any prior conviction, the defendant has the -10-

burden of proving the defect by a preponderance of the evidence.”

{¶ 23} At trial, the State introduced Exhibit 14, which was a certified copy of an

Order and Entry in Case Number 98 CRB 15639 in the Dayton Municipal Court. The

document listed Edward T. Rimi as the defendant and stated his correct social security

number and date of birth. The document noted that Rimi had pled guilty to domestic

violence, a fourth-degree misdemeanor in violation of R.C. 2919.25(A)(1). State’s

Exhibit 14 also contained an official seal from the Clerk of Courts for the Dayton Municipal

Court. This evidence was sufficient to establish the prior conviction for domestic

violence.

{¶ 24} Further, Rimi’s only evidence submitted contrary to Exhibit 14 was his

conclusory testimony that he did not remember pleading to a domestic violence charge

and did not remember being represented by an attorney in that case. However, he did

recall that, in the 1999 case, he was originally charged with a first-degree misdemeanor

domestic violence charge and pled down to a fourth-degree misdemeanor charge.

State’s Exhibit 14 is consistent with that testimony. Rimi’s testimony that he believed the

fourth-degree misdemeanor was “disorderly conduct or something like that” was

insufficient, without more, to overcome the evidence presented by the State that the

fourth-degree misdemeanor was for domestic violence, not disorderly conduct.

{¶ 25} We conclude that the jury’s finding that Rimi had been previously convicted

of domestic violence was supported by sufficient evidence and was not against the

manifest weight of the evidence. Rimi’s sole assignment of error is overruled. -11-

III. Conclusion

{¶ 26} Having overruled Rimi’s assignment of error, the judgment of the trial court

is affirmed.

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Lucas W. Wilder Hon. Susan D. Solle