State v. Bolling ( 2011 )

[Cite as State v. Bolling, 2011-Ohio-2790.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95568
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROYCHEMERE A. BOLLING
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-536940
BEFORE: Celebrezze, P.J., Cooney, J., and Rocco, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEY FOR APPELLANT
Iverson M. Jackson
420 Lakeside Place
323 West Lakeside Avenue
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Oscar E. Albores
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Appellant, Roychmere Bolling, appeals his conviction for domestic
violence. For the reasons outlined below, we affirm appellant’s conviction.
{¶ 2} On May 19, 2010, appellant was indicted on charges of kidnapping
in violation of R.C. 2905.01(A)(3), a felony of the first degree; domestic violence
in violation of R.C. 2919.25(A)(1), a misdemeanor of the first degree;
intimidation of a crime victim or witness in violation of R.C. 2921.04(B), a
felony of the third degree; and assault in violation of R.C. 2903.13(A), a
misdemeanor of the first degree. On June 3, 2010, appellant entered a plea of
not guilty and trial was set for August 9, 2010.
{¶ 3} Subsequently, appellant waived his right to a jury trial. At the
close of all evidence, appellant moved for acquittal, which was granted as to
Counts 1, 3, and 4, and denied as to Count 2, domestic violence. On August
10, 2010, the trial court found appellant guilty on the only remaining charge of
domestic violence. Appellant was sentenced to three months of community
control, ten hours of community service, a $200 fine, and anger management
classes.
{¶ 4} Appellant and the alleged victim, Tiffany Crosby, had dated and
lived together in Cleveland, Ohio. On November 5, 2009, appellant met
Crosby at the Early Childhood Development Center, where Crosby was
picking up her son from school. At that time, appellant confronted Crosby
about an encounter she had with a previous boyfriend at a local bar. When
Crosby attempted to disengage from appellant, he grabbed her scarf to prevent
her from walking away. Appellant continued to hold Crosby by her scarf
throughout the parties’ argument. A teenage girl from the neighborhood
witnessed the argument. Crosby saw the girl and asked her to take Crosby’s
son home from the school. Appellant then yelled at the girl, “If you go get her
mother I’m going to kill her.”
{¶ 5} On November 11, 2009, Crosby gave a voluntary statement
regarding the November 5, 2009 incident to Detective Castillo of the domestic
violence unit of the Cleveland police department. Based on this statement,
Det. Castillo conferred with the city prosecutor, and a warrant was issued for
appellant’s arrest.
Law and Analysis
{¶ 6} Appellant appeals, citing two assignments of error:
{¶ 7} “I. “The trial court erred in denying appellant’s motion for
acquittal on the domestic violence charge when the state failed to present
sufficient evidence to sustain the conviction.”
{¶ 8} “II. “Appellant’s conviction is against the manifest weight of the
evidence.”
{¶ 9} For the purposes of clarity and judicial economy, appellant’s first
and second assignment of errors will be discussed together.
{¶ 10} Appellant argues that there was insufficient evidence to support
his conviction for domestic violence and that the conviction was against the
manifest weight of the evidence. He specifically contends that the state failed
to present any evidence that he knowingly caused or attempted to cause
physical harm to Crosby.
{¶ 11} “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. Sufficiency is a test of adequacy. Whether the evidence is
legally sufficient to sustain a verdict is a question of law. Id. at 386. Weight
of the evidence concerns “the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the
other.” (Emphasis deleted.) Id. at 387. Weight is not a question of
mathematics, but depends on its effect in inducing belief. Id.
{¶ 12} When reviewing the sufficiency of the evidence to support a
criminal conviction, an appellate court examines 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. State v. Jenks (1991), 61 Ohio
St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶ 13} A challenge to the manifest weight of the evidence attacks the
verdict in light of the state’s burden of proof beyond a reasonable doubt.
Thompkins at 386–387. When inquiring into the manifest weight of the
evidence, the reviewing court sits as the “thirteenth juror and makes an
independent review of the record.” Id. at 387; Tibbs v. Florida (1982), 457
U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652. The appellate court reviews the
entire record, weighs the evidence and all reasonable inferences, considers the
credibility of all witnesses and determines 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 judgment must be reversed and a new
proceeding ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485
N.E.2d 717.
{¶ 14} Where a judgment is supported by competent, credible evidence
going to all essential elements to be proven, the judgment will not be reversed
as being against the manifest weight of the evidence. State v. Mattison
(1985), 23 Ohio App.3d 10, 14, 490 N.E.2d 926. Accordingly, reversal on
manifest weight grounds is reserved for “the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175.
{¶ 15} To sustain appellant’s conviction for domestic violence in violation
of R.C. 2919.25(A), the state was required to prove that appellant knowingly
caused or attempted to cause physical harm to Crosby.
{¶ 16} The definition of “knowingly” found in R.C. 2901.22(B) provides
that “[a] person acts knowingly, regardless of his purpose, when he is aware
that his conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when he is aware
that such circumstances probably exist.”
{¶ 17} “‘Physical harm to persons’ means any injury, illness, or other
physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3). “The foregoing definition clearly mandates that any injury
may constitute physical harm and that the gravity or duration of the injury is
not a factor for consideration.” State v. Bowens (Aug. 3, 1998), Clermont App.
No. CA98-01-009, citing State v. Goble (1982), 5 Ohio App.3d 197, 199, 450
N.E.2d 722.
{¶ 18} Generally, “[o]ne does not have to cause serious injury to be guilty
of domestic violence.” State v. Blonski (1997), 125 Ohio App.3d 103, 114, 707
N.E.2d 1168. Indeed, “[a] defendant may be found guilty of domestic violence
even if the victim sustains only minor injuries, or sustains no injury at all.”
Id., citing State v. Nielsen (1990), 66 Ohio App.3d 609, 612, 585 N.E.2d 906.
{¶ 19} While we recognize that Crosby testified that she was not injured
by the appellant and was “fine” when the police arrived at the scene, a
violation of R.C. 2919.25(A) can also be demonstrated by a showing that
appellant attempted to commit physical harm. Hamilton v. Cameron (1997),
121 Ohio App.3d 445, 700 N.E.2d 336. A criminal “attempt” is defined as an
act that is a substantial step in a course of conduct planned to culminate in
the commission of a crime. R.C. 2923.02(A).
{¶ 20} In the case at bar, the evidence demonstrates that in the midst of
a heated argument, appellant intentionally and consciously grabbed Crosby by
her scarf and prevented her from walking away. In fact, Crosby testified that
appellant grabbed her in such a manner that she had to place her hands
between her neck and the scarf in order to prevent herself from choking.
Appellant himself demonstrated his mindset at the time of the argument when
he told the nearby teenage girl, “If you go get her mother I will kill her.”
{¶ 21} Taking this information into consideration, we find that the
totality of the circumstances indicate that appellant, in the least, knowingly
attempted to cause physical harm to Crosby. Accordingly, appellant’s
conviction was supported by sufficient evidence.
{¶ 22} Additionally, we are unable to conclude that this is the exceptional
case in which the evidence weighs heavily against the conviction. The state
presented competent, credible evidence to support each element of the offense
of which appellant was convicted. As stated, Crosby testified under oath that
appellant abruptly grabbed her by her scarf to prevent her from walking away
from him. She testified that the scarf was wrapped tightly around her neck
due to the cold weather and that she kept her hand between her neck and
scarf to prevent appellant from choking her. Further, a passerby heard
appellant threaten to kill Crosby if her mother was summoned.
{¶ 23} In weighing the credibility of witnesses and the totality of
evidence presented, appellant’s conviction for domestic violence was not
against the manifest weight of the evidence.
{¶ 24} Appellant’s first and second assignments of error are without
merit and are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
KENNETH A. ROCCO, J., CONCUR