[Cite as State v. Rosumenko, 2014-Ohio-127.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-49 : PAUL C. ROSUMENKO : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CR 00605
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 14, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT BRYAN BOWEN LICKING CO. PROSECUTOR BOWEN & KECK LAW, LLC Paula M. Sawyers 338 South High St. 20 S. Second St., Fourth Floor Columbus, OH 43215 Newark, OH 43055 Licking County, Case No.13-CA-49 2
Delaney, J.
{¶1} Appellant Paul C. Rosumenko appeals from the May 17, 2013 Judgment
Entry of the Licking County Court of Common Pleas convicting him of one count of
aggravated burglary and one count of domestic violence and sentencing him to a prison
term of six years. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Crystal Rosumenko have been married for over a year and
have one child together. As of November 10, 2012, Crystal considered appellant her
“ex” although the two were still married. That evening, she went to the Budget Inn
located at 176 West Church Street, Newark, in Licking County, Ohio, to “get away from
the drama” with appellant.
{¶3} Crystal stayed in Room 111 with her friend Shawn Fry, Fry’s girlfriend
Suzayn Henry, Crystal’s friend Chasity Palmer, and Palmer’s boyfriend Brian Hess.
Crystal’s car was parked directly in front of the door to the room. The group watched
T.V. and settled down to sleep but was awakened by the sound of Crystal’s car alarm.
{¶4} Chasity Palmer went to the door of the room to look out. She opened the
door and saw a “figure” in the parking lot running toward the door. Palmer tried to shut
the door quickly but was not able to do so. The person entered the room and began to
fight with Crystal. Palmer could not see clearly because she didn’t have her glasses on.
{¶5} Shawn Fry was in the motel room bathroom when the car alarm went off.
He came out and saw Crystal looking out the blinds, and Palmer trying to push
someone out the door. Someone said “Paul, it’s Paul.” Fry observed appellant burst
into the room by kicking the door in. Appellant immediately began to argue with Crystal Licking County, Case No.13-CA-49 3
and the others in the room tried to push him out. Fry observed appellant strike Crystal
on her right cheek with his hand.
{¶6} Suzayn Henry was pregnant during this incident and hid in the bathroom
until the others said appellant was gone. When she came out, she asked Crystal if she
was O.K. and Crystal replied “No, he hit me.” Henry observed the door frame of the
room was “destroyed” and urged the group to call police.
{¶7} Crystal testified she was asleep when she heard a “boom” and her car
alarm went off. She jumped out of bed as Palmer was opening the door which appellant
then kicked in. Crystal testified appellant screamed at her and “accused her of sleeping
with everyone in the room” before grabbing her, shaking her, and striking her on the
arm. Crystal observed a dent in the front of her car but was not certain appellant did it.
She testified her only resulting injury from appellant’s assault was a bruise on her arm.
{¶8} Newark police responded to the Budget Inn and took statements from the
witnesses. They also photographed the broken door. Police were unable to locate
appellant that night.
{¶9} Appellant was charged by indictment with one count of aggravated
burglary pursuant to R.C. 2911.11(A)(1), a felony of the first degree, one count of
domestic violence pursuant to R.C. 2919.25(A), a felony of the third degree, and one
count of criminal damaging pursuant to R.C. 2909.06(A), a misdemeanor of the second
degree. Appellant entered pleas of not guilty and the case proceeded to jury trial.
Appellant stipulated to two prior domestic violence convictions. He moved for judgment
of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and at the
close of all of the evidence, and the motions were overruled. Appellant did not present Licking County, Case No.13-CA-49 4
evidence or testify on his own behalf. The jury found him guilty of aggravated burglary
and domestic violence but not guilty of criminal damaging.
{¶10} The parties agreed the aggravated burglary and domestic violence
offenses merged for sentencing purposes and appellee elected to sentence on Count I,
aggravated burglary. The trial court imposed a prison term of six years.
{¶11} Appellant now appeals from the judgment entry of conviction and
sentence.
{¶12} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶13} “I. THE DEFENDANT-APPELLANT’S CONVICTIONS FOR
AGGRAVATED BURGLARY, IN VIOLATION OF OHIO REVISED CODE 2911.01; AND
DOMESTIC VIOLENCE, IN VIOLATION OF OHIO REVISED CODE 2919.25, WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶14} In his sole assignment of error, appellant argues his convictions are
against the manifest weight and sufficiency1 of the evidence. We disagree.
{¶15} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
1 Appellant does not assign the sufficiency of the evidence in his statement of his assignment of error, but does argue sufficiency throughout his brief, supported by reference to the record and authority. In the interest of justice, therefore, we will address his sufficiency argument as well as manifest weight. Licking County, Case No.13-CA-49 5
the Ohio Supreme Court held, “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. The 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.”
{¶16} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Rosumenko, 2014-Ohio-127.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-49 : PAUL C. ROSUMENKO : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 12 CR 00605
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: January 14, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT BRYAN BOWEN LICKING CO. PROSECUTOR BOWEN & KECK LAW, LLC Paula M. Sawyers 338 South High St. 20 S. Second St., Fourth Floor Columbus, OH 43215 Newark, OH 43055 Licking County, Case No.13-CA-49 2
Delaney, J.
{¶1} Appellant Paul C. Rosumenko appeals from the May 17, 2013 Judgment
Entry of the Licking County Court of Common Pleas convicting him of one count of
aggravated burglary and one count of domestic violence and sentencing him to a prison
term of six years. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Crystal Rosumenko have been married for over a year and
have one child together. As of November 10, 2012, Crystal considered appellant her
“ex” although the two were still married. That evening, she went to the Budget Inn
located at 176 West Church Street, Newark, in Licking County, Ohio, to “get away from
the drama” with appellant.
{¶3} Crystal stayed in Room 111 with her friend Shawn Fry, Fry’s girlfriend
Suzayn Henry, Crystal’s friend Chasity Palmer, and Palmer’s boyfriend Brian Hess.
Crystal’s car was parked directly in front of the door to the room. The group watched
T.V. and settled down to sleep but was awakened by the sound of Crystal’s car alarm.
{¶4} Chasity Palmer went to the door of the room to look out. She opened the
door and saw a “figure” in the parking lot running toward the door. Palmer tried to shut
the door quickly but was not able to do so. The person entered the room and began to
fight with Crystal. Palmer could not see clearly because she didn’t have her glasses on.
{¶5} Shawn Fry was in the motel room bathroom when the car alarm went off.
He came out and saw Crystal looking out the blinds, and Palmer trying to push
someone out the door. Someone said “Paul, it’s Paul.” Fry observed appellant burst
into the room by kicking the door in. Appellant immediately began to argue with Crystal Licking County, Case No.13-CA-49 3
and the others in the room tried to push him out. Fry observed appellant strike Crystal
on her right cheek with his hand.
{¶6} Suzayn Henry was pregnant during this incident and hid in the bathroom
until the others said appellant was gone. When she came out, she asked Crystal if she
was O.K. and Crystal replied “No, he hit me.” Henry observed the door frame of the
room was “destroyed” and urged the group to call police.
{¶7} Crystal testified she was asleep when she heard a “boom” and her car
alarm went off. She jumped out of bed as Palmer was opening the door which appellant
then kicked in. Crystal testified appellant screamed at her and “accused her of sleeping
with everyone in the room” before grabbing her, shaking her, and striking her on the
arm. Crystal observed a dent in the front of her car but was not certain appellant did it.
She testified her only resulting injury from appellant’s assault was a bruise on her arm.
{¶8} Newark police responded to the Budget Inn and took statements from the
witnesses. They also photographed the broken door. Police were unable to locate
appellant that night.
{¶9} Appellant was charged by indictment with one count of aggravated
burglary pursuant to R.C. 2911.11(A)(1), a felony of the first degree, one count of
domestic violence pursuant to R.C. 2919.25(A), a felony of the third degree, and one
count of criminal damaging pursuant to R.C. 2909.06(A), a misdemeanor of the second
degree. Appellant entered pleas of not guilty and the case proceeded to jury trial.
Appellant stipulated to two prior domestic violence convictions. He moved for judgment
of acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and at the
close of all of the evidence, and the motions were overruled. Appellant did not present Licking County, Case No.13-CA-49 4
evidence or testify on his own behalf. The jury found him guilty of aggravated burglary
and domestic violence but not guilty of criminal damaging.
{¶10} The parties agreed the aggravated burglary and domestic violence
offenses merged for sentencing purposes and appellee elected to sentence on Count I,
aggravated burglary. The trial court imposed a prison term of six years.
{¶11} Appellant now appeals from the judgment entry of conviction and
sentence.
{¶12} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶13} “I. THE DEFENDANT-APPELLANT’S CONVICTIONS FOR
AGGRAVATED BURGLARY, IN VIOLATION OF OHIO REVISED CODE 2911.01; AND
DOMESTIC VIOLENCE, IN VIOLATION OF OHIO REVISED CODE 2919.25, WERE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
ANALYSIS
{¶14} In his sole assignment of error, appellant argues his convictions are
against the manifest weight and sufficiency1 of the evidence. We disagree.
{¶15} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
1 Appellant does not assign the sufficiency of the evidence in his statement of his assignment of error, but does argue sufficiency throughout his brief, supported by reference to the record and authority. In the interest of justice, therefore, we will address his sufficiency argument as well as manifest weight. Licking County, Case No.13-CA-49 5
the Ohio Supreme Court held, “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. The 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.”
{¶16} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶17} Appellant was convicted of one count of aggravated burglary pursuant to
R.C. 2911.11(A)(1), which states in pertinent part, “No person, by force, stealth, or
deception, shall trespass in an occupied structure * * * when another person other than
an accomplice of the offender is present, with purpose to commit * * * any criminal
offense, if any of the following apply: [t]he offender inflicts, or attempts or threatens to
inflict physical harm on another.” He was also convicted of one count of domestic Licking County, Case No.13-CA-49 6
violence pursuant to R.C. 2919.25(A), which states, “No person shall knowingly cause
or attempt to cause physical harm to a family or household member.”
{¶18} In challenging the manifest weight and sufficiency of the evidence,
appellant does not challenge appellee’s evidence as to any specific element of the
offenses but instead points to various discrepancies in the testimony of appellee’s
witnesses. We note, however, the weight of the evidence and the credibility of the
witnesses are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227,
231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
{¶19} We have thoroughly reviewed the record of this case and the exhibits.
Appellee’s evidence established appellant trespassed into the motel room and
assaulted his wife. The witnesses’ testimony is buttressed by the physical evidence of
the broken door frame. Viewing the evidence in the light most favorable to appellee, the
evidence supports appellant’s convictions for aggravated burglary and domestic
violence. We further note the jury evidently did not lose its way in considering the
evidence and create a manifest miscarriage of justice; in fact, the jury found appellant
guilty of two offenses and not guilty of another (criminal damaging). The jury was
evidently able to reject some of appellee’s evidence, to wit, Crystal’s somewhat
equivocal testimony about the damage to her car.
{¶20} We conclude appellant’s convictions are supported by sufficient evidence
and are not against the manifest weight of the evidence. Appellant’s sole assignment of
error is overruled. Licking County, Case No.13-CA-49 7
CONCLUSION
{¶21} Appellant’s sole assignment of error is overruled and the judgment of the
Licking County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J. and
Hoffman, J., concur.