State v. Terry

2023 Ohio 3131

Opinion

[Cite as State v. Terry, 2023-Ohio-3131.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-230049 TRIAL NO. 22CRB-20250 Plaintiff-Appellee, : O P I N I O N. vs. :

TREVON TERRY, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 6, 2023

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Joseph Otero, Assistant Prosecuting Attorney, for Plaintiff- Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} Following a bench trial in municipal court, defendant-appellant

Trevon Terry was convicted of one misdemeanor count of domestic violence in

violation of R.C. 2919.25(A). He has appealed that conviction, arguing that a

cell-phone video recorded immediately after the incident, which depicts Terry

holding a knife, was improperly admitted, that his conviction was based on

insufficient evidence and that his conviction was against the manifest weight of

the evidence. For the reasons set forth below, we affirm Terry’s conviction.

Facts and Procedural History

{¶2} On November 27, 2022, Trevon Terry and Kiara Winfield were

arguing over the end of their two-year romantic relationship, where they shared

a three-year-old boy. The couple had been exchanging heated text messages

earlier that day, and Winfield asked Terry to leave their shared apartment.

Around 5:00 p.m., Winfield returned from work to their apartment and found

Terry still packing his belongings. The text-message argument quickly

restarted in person. The argument escalated when Terry took the only

television, which originally belonged to Terry’s mother. While arguing, the two

“got in one another’s faces.”

{¶3} As the argument escalated, Terry put one hand around

Winfield’s throat and pushed her away. The force of the push on Winfield’s

neck choked her. In response, Winfield pushed back at Terry, scratched his

face, and threatened to call the police. At the time, Terry was on probation for

an earlier assault conviction. Terry then retrieved a knife, either from the

kitchen or a nearby desk, and briefly pointed it at Winfield. Terry placed his

hand on Winfield’s neck a second time, but Terry did not push or choke her.

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{¶4} Winfield then took out her cell phone and began recording a

video of the dispute. Terry then put the knife down on a table, but it fell to the

floor. Winfield lunged to secure it. The dispute deescalated and Winfield went

to check on their son in the next room while Terry collected his belongings and

left. Winfield called her family, who arrived around 10:00 p.m. At the behest

of her family, Winfield reported the incident to the police. The responding

officer arrived that night and took pictures of Winfield’s neck.

{¶5} Terry was charged with one count of domestic violence in

violation of R.C. 2919.25(A), a misdemeanor of the first degree. The matter

was tried to the bench. There the state sought to introduce Winfield’s video

taken after Terry removed his hand from Winfield’s neck, which the court

admitted over objection with little discussion. At the close of trial, the judge

found Terry guilty and imposed a suspended sentence with two years’

community control. Terry timely appealed.

Admission of Evidence

{¶6} In his first assignment of error, Terry contends that the trial

court improperly admitted Winfield’s cell-phone video into evidence. A trial

court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407,

972 N.E.2d 528, ¶ 19. An abuse of discretion connotes a judgment that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “[A]s the [Ohio] Supreme Court

recently clarified, ‘courts lack the discretion to make errors of law.’ ” State v.

Austin, 1st Dist. Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5,

quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304,

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187 N.E.3d 463, ¶ 39. But an error in an evidentiary ruling does not warrant

reversal of the trial court’s judgment unless the ruling affected the substantial

rights of the complaining party. Evid.R. 103(A); State v. Griffin, 1st Dist.

Hamilton No. C-020084, 2003-Ohio-3196, ¶ 13.

{¶7} Terry objected to the admission of the cell-phone video under

Evid.R. 403, arguing that the video was not probative of whether Terry

knowingly harmed Winfield and that the danger of unfair prejudice

substantially outweighed any potential probative value. Under Evid.R. 402,

“[t]he general principle that guides admission of evidence is that ‘[a]ll relevant

evidence is admissible * * * .’ ” State v. Morris, 132 Ohio St.3d 337,

2012-Ohio-2407, 972 N.E.2d 528, ¶ 11, quoting Evid.R. 402. Evid.R. 403

provides “exceptions to this general principle and provides circumstances for

the exclusion of relevant evidence.” Id., citing Evid.R. 403. One such exception

is that relevant evidence is not admissible when “its probative value is

substantially outweighed by the danger of unfair prejudice,” among other

things. State v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, ¶ 31,

citing Evid.R. 402 and 403(A).

{¶8} The cell-phone video taken by Winfield is probative of multiple

facts of consequence. First, it goes to whether Terry knowingly harmed

Winfield because the video depicts Terry’s anger after Winfield threatened to

call the police as well as Terry’s confrontational demeanor. Terry’s statements

contained in the video are also probative of whether Terry knowingly grabbed

and pushed Winfield. Had Terry unintentionally grabbed and pushed

Winfield, presumably the video would show surprise or a pause instead of the

continuation of the argument.

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{¶9} The cell-phone video is also relevant because it reinforces

Winfield’s credibility. The state presented its case with Winfield as the sole

witness. Thus, her credibility was at issue. The video supports Winfield’s

credibility because Winfield testified that Terry had a knife during part of the

dispute and a knife can be seen in Terry’s right hand in the video. By

corroborating this part of Winfield’s testimony, the video suggests Winfield’s

other testimony about being grabbed and choked is more likely to be true.

{¶10} The cell-phone video is also not unfairly prejudicial. Terry

argues the video is unfairly prejudicial because it invites the judge to convict

Terry of first-degree domestic violence for knowingly harming a family

member under R.C. 2919.25(A) based on evidence for the distinct offense of

second-degree domestic violence for using threats of force on a family member

under R.C. 2919.25(C). Terry was tried in a bench trial. Thus, “we presume

that ‘the court considered only the relevant, material, and competent evidence

in arriving at its judgment unless it affirmatively appears to the contrary.’ ”

State v. Robbins, 1st Dist. Hamilton No. C-120107, 2013-Ohio-612, ¶ 14,

quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 65 (1968). There is

no indication that the judge abandoned her duty and integrity and convicted

Terry of first-degree domestic violence because of a video showing evidence of

second-degree domestic violence. Rather, to the contrary, the judge stated at

the close of the state’s case that “I’m going to admit [the cell-phone video] for

what it’s worth.” This statement suggests that the trial court declined any

possible invitation to decide the case on an impermissible basis and only

considered the video in light of its relevance to the elements of R.C. 2919.25(A).

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{¶11} Because the cell-phone video was relevant and its probative

value was not substantially outweighed by the danger of unfair prejudice, we

overrule Terry’s first assignment of error.

Sufficiency of the Evidence

{¶12} In his second assignment of error, Terry argues that his

conviction was not supported by legally sufficient evidence. A challenge to the

sufficiency of evidence supporting a conviction requires a court to determine

whether the state has met its burden of production at trial. State v. Thompkins,

78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring). The

relevant inquiry, when reviewing the sufficiency of the evidence, 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 offense

proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus; State v. Ojile, 1st Dist.

Hamilton Nos. C-110677 and C-110678, 2012-Ohio-6015, ¶ 48. In deciding if

the evidence was sufficient, we neither resolve evidentiary conflicts nor assess

the credibility of the witnesses. State v. Thomas, 1st Dist. Hamilton

No. C-120561, 2013-Ohio-5386, ¶ 45. It is a question of law for the court to

determine and a court is not to weigh the evidence unless, after viewing the

evidence, it weighs heavily against conviction. Id.

{¶13} To sustain a conviction for domestic violence under

R.C. 2919.25(A), a person must (1) knowingly (2) cause or attempt to cause

(3) physical harm (4) to a family or household member. Terry’s sufficiency

argument contests only the element of physical harm. R.C. 2901.01(A)(3)

defines “physical harm” to mean an “injury, illness, or other physiological

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impairment, regardless of its gravity or duration.” This court has consistently

applied this broad statutory definition, explaining that “[t]he slightest injury is

sufficient to prove physical harm.” State v. Jackson, 1st Dist. Hamilton

No. C-210634, 2023-Ohio-785, ¶ 21, quoting State v. Thornton, 1st

Dist. Hamilton Nos. C-210629, C-210630, C-210631 and C-210632,

2022-Ohio-3452, ¶ 30, citing State v. Daniels, 2018-Ohio-1701,

111 N.E.3d 708, ¶ 35 (1st Dist.).

{¶14} There is sufficient evidence, when viewed in the light most

favorable to the state, that Terry caused Winfield “physical harm” within the

meaning of the domestic-violence statute. A victim’s testimony, if found

credible, can provide sufficient evidence to sustain a conviction. City of

Cleveland v. Watson, 8th Dist. Cuyahoga No. 108746, 2020-Ohio-3284, ¶ 38.

Though the photographs taken that night do not show any physical marks or

bruises, Winfield’s testimony that Terry put his hands on her neck twice during

the argument and that Terry choked her the first time Terry grabbed Winfield’s

throat is sufficient evidence to meet the broad statutory definition of “physical

harm.” See Daniels at ¶ 35 (grab of face causing pain is sufficient injury to

constitute “physical harm”); Watson at ¶ 35 (pain from pulling hair extensions

is sufficient injury to constitute “physical harm,” though victim suffered no

lasting or serious physical harm); State v. Hustead, 83 Ohio App.3d 809, 615

N.E.2d 1081 (4th Dist.1992) (slap to the face, which causes no redness, bruising

or head movement, is sufficient proof of “physical harm” under patient-abuse

statute that uses the same definition for the term).

{¶15} Viewing the testimony in this case in the light most favorable to

the prosecution, a rational finder of fact can reasonably conclude that choking

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is an injury, illness, or other physiological impairment that constitutes physical

harm. Because Terry does not contest the sufficiency of the evidence as to any

other element of his conviction, we find that there was sufficient evidence to

support Terry’s conviction.

Manifest Weight of the Evidence

{¶16} Additionally, Terry argues in his second assignment of error

that his conviction is against the manifest weight of the evidence. In contrast

to a challenge to the sufficiency of the evidence, an appellate court, in deciding

whether a conviction is against the manifest weight of the evidence, determines

whether the state has appropriately carried its burden of persuasion.

Thompkins, 78 Ohio St. 3d at 390, 678 N.E.2d 541 (Cook, J., concurring). In

reviewing 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 the witnesses and determine whether, in resolving conflicts in

the evidence, the [trier of fact] 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. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997,

¶ 59, quoting Thompkins at 387.

{¶17} In reviewing a challenge to the weight of the evidence, this court

sits as a “thirteenth juror.” State v. Curry, 1st Dist. Hamilton No. C-180493,

2020-Ohio-1230, ¶ 17, quoting Thompkins at 387. However, the trier of fact is

in the best position to judge the credibility of the witnesses. See State v.

DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the

syllabus; State v. Jackson, 1st Dist. Hamilton No. C-210634, 2023-Ohio-785,

¶ 17. Accordingly, a reviewing court will not substitute its judgment for that of

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the trier of fact on the issue of witness credibility unless it is patently apparent

that the trier of fact lost its way in arriving at its verdict. State v. Porter, 1st

Dist. Hamilton No. C-200459, 2021-Ohio-3232, ¶ 25.

{¶18} The trial court was entitled to believe Winfield’s testimony that

Terry put one hand around Winfield’s throat and pushed her away, choking

her, and that Terry put his hand on Winfield’s neck a second time, but did not

choke her. See State v. McDaniel, 2021-Ohio-724, 168 N.E.3d 910, ¶ 25 (1st

Dist.), quoting State v. Robinson, 12th Dist. Butler No. CA2018-08-163,

2019-Ohio-3144, ¶ 29 (holding a conviction is not against the manifest weight

of the evidence simply because the trier of fact accepts one explanation over

another). The fact that the video corroborated Winfield’s testimony that Terry

had a knife supports the trial court’s credibility determination. Based on a

careful review of the entire record, we hold that the trier of fact did not clearly

lose its way and create a manifest miscarriage of justice in convicting Terry of

domestic violence. This is not an exceptional case where the evidence weighs

heavily against conviction.

{¶19} Because we hold that Terry’s conviction was supported by

sufficient evidence and was not contrary to the manifest weight of the evidence,

we overrule the second assignment of error.

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Conclusion

{¶20} Having overruled both assignments of error, we affirm the

judgment of the trial court.

Judgment affirmed.

C ROUSE , P.J., and K INSLEY , J., concur.

Please note: The court has recorded its own entry on this date.