State v. Myers , 2022 Ohio 3337 ( 2022 )

[Cite as State v. Myers, 2022-Ohio-3337.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 21-COA-025
KEITH L. MYERS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 21-CRI-
085
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 22, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL BRIAN A. SMITH
Prosecuting Attorney 123 South Miller Road
BY: NADINE HAUPTMAN Suite 250
Assistant Prosecutor Fairlawn, OH 44333
110 Cottage Street, Third Floor
Ashland, OH 44805
Ashland County, Case No. 21-COA-025 2
Gwin, P.J.
{¶1} Appellant Keith Myers, Jr. appeals from the November 15, 2021 judgment
entry of the Ashland County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On April 22, 2021, appellant was charged with one count of domestic
violence, in violation of R.C. 2919.25(A) and R.C. 2919.25(D)(4), a felony of the third
degree, because appellant previously pled guilty to or had been convicted of two offenses
of domestic violence.
{¶3} The trial court held a bench trial on August 10, 2021.
{¶4} Appellant was married to G.E.’s mother, Kelli Myers (“K.M.”) G.E. was
fourteen years old and lived with K.M. and appellant on March 13, 2021. G.E. testified
he was four inches taller on the date of trial than he was on the date of the incident. On
March 13, 2021, G.E. was in bed. Noises in K.M.’s room woke him up. He walked over
to her room and saw appellant laying on top of K.M.’s medication bag. G.E. asked
appellant to get off the bag, which appellant did. Appellant ran downstairs.
{¶5} G.E. asked K.M. if she had her keys. Because she did not have her keys,
G.E. rushed downstairs and asked appellant for the keys. G.E. stated appellant did not
want them to leave the house. G.E. reached for the keys, and then felt appellant’s fist hit
him on the left side of the head, behind the ear. His head started hurting “really bad.”
G.E. took out a Gerber knife. He threw the knife on the side arm of the couch because
he didn’t want to hurt appellant, and then punched appellant in the throat because G.E.
was afraid appellant was going to do something else to harm him. After G.E. hit appellant,
Ashland County, Case No. 21-COA-025 3
appellant ran upstairs to give K.M. the keys. G.E. and K.M. went to the police station to
make a report.
{¶6} The State of Ohio introduced G.E.’s knife into evidence. G.E. described it
as a Gerber multi-tool, with a knife, a little saw, a screwdriver, and pliers. G.E. testified
he opened the knife on the Gerber tool before he went downstairs, and then put the open
knife in his pocket. G.E. stated the pain in his head was an eight out of ten, and the pain
lasted two weeks. The bump on his head disappeared by the third week.
{¶7} On cross-examination, G.E. stated he did not tell the officer about the knife
when he first gave the officer an account of the events because he forgot. However, he
informed the officer about the knife during the interview, and left the knife with the officer.
{¶8} K.M. married appellant on June 9, 2016. K.M. testified that, on March 13th,
G.E. was approximately five foot four inches, and today G.E. is several inches taller. K.M.
was scheduled to go with G.E. to visit her older son in Dayton on March 13, 2021. She
was packing her stuff and getting her heart medication. Appellant was upset K.M. was
leaving, so he laid on top of her medicine bag. G.E. heard the disturbance, and asked
appellant to get off her bag. Appellant did so, and ran downstairs. K.M. asked G.E. to go
get the keys off the hook from downstairs and load up their stuff. G.E. left the room. She
then heard appellant yelling. She heard G.E. “cry out,” in a scared tone. She went
downstairs and told G.E. “let’s go.” G.E. was upset and crying. Appellant then brought
the keys to her. Upon questioning by the trial court, K.M. stated that, after the altercation,
appellant came up the stairs to give her the keys, and G.E. came up the stairs behind
him.
Ashland County, Case No. 21-COA-025 4
{¶9} K.M. took G.E. to the police station because he was hurt. A lump on the left
side of G.E.’s head appeared the next day. K.M. was aware that G.E. had a multi-tool
with a knife, pliers, and screwdriver that appellant gave to him.
{¶10} On cross-examination, K.M. testified she could not remember if she told the
officer that G.E. “cried out” during the incident. K.M. admitted she was upstairs during
the altercation, so the noise she heard could have come from either party.
{¶11} Sergeant Aaron Cline (“Cline”) is a police officer for the City of Ashland. On
March 13, 2021, he was the supervisor for the day shift. That day, appellant called in and
Cline spoke to him. Cline told appellant he needed to come and talk to Officer Eggeman
about the case. Appellant stated he did not want to come to the station because he was
scared that he would be arrested.
{¶12} Officer Eggeman is an officer with the City of Ashland Police Department.
Eggeman met with G.E. and Myers on March 13, 2021, after they reported that appellant
punched G.E. Eggeman stated G.E. was, “upset, crying and scared and very protective
of his mother, and he was trying to be very brave.” G.E. told Eggeman that appellant
punched him in the area behind his left ear. Eggeman viewed the body cam video from
that day to determine G.E.’s height, and testified G.E. was below his head. He
approximated G.E.’s height as five foot nine inches tall.
{¶13} Eggeman collected a small, folded utility tool from G.E. When Eggeman
exposed the blade on the knife portion of the multi-tool, the blade was approximately one
or one-and-a-half inches long.
{¶14} Eggeman spoke to appellant on March 13, 2021 by phone. Appellant’s
demeanor was calm. Eggeman told appellant he needed to speak to him in person.
Ashland County, Case No. 21-COA-025 5
Appellant did not want to come to the police department and stated he needed a day to
clear his head. Eggeman spoke to appellant by phone on March 14, 2021, the day
appellant stated he would meet Eggeman. However, appellant told Eggeman he was
exposed to COVID-19. Eggeman then informed appellant he was forwarding the report
for review of charges. Appellant was angry, and told Eggeman “good luck in court.”
{¶15} Eggeman performed a criminal background check on appellant by giving
dispatch appellant’s name, social security number, and date of birth. Eggeman found
appellant had prior convictions. Eggeman testified Exhibit 9 is a “report from Portage
County Municipal Court charging [appellant] with domestic violence” on September 17,
1997. Eggeman stated the social security number and date of birth listed on Exhibit 9 are
the same social security number and date of birth he had for appellant. Eggeman
confirmed that Exhibit 9 was a certified copy from the Portage Municipal Court, and, at
the bottom of Exhibit 9, it showed a conviction for domestic violence.
{¶16} Eggeman stated Exhibit 10 was a certified “record” for an Akron Municipal
Court case from 1998 showing appellant’s date of birth and showing a finding of guilty for
domestic violence. The date of birth and social security number on Exhibit 10 match the
date of birth and social security number Eggeman had for appellant.
{¶17} After the testimony of Eggeman, the trial court admitted Exhibits 1 through
10, with limited scope as to State’s Exhibit 8, without objection.
{¶18} Appellant testified on his own behalf. Appellant stated he knew K.M. and
G.E. were traveling to see K.M.’s son on March 13, 2021, and he had no issue with that.
Appellant testified he was laying on K.M.’s bag that morning because he was supposed
to walk a puppy, and K.M. placed the bag on the floor on top of the dog’s collar. Appellant
Ashland County, Case No. 21-COA-025 6
stated he has bad knees, and he was laying on the ground on top of the bag in pain due
to his bad knees. When G.E. asked him to get off the bag, he did. Appellant stated he
then grabbed K.M.’s keys and headed downstairs, with G.E. behind him, yelling and
cursing at him. Appellant testified he was trying to be helpful, and take the keys back up
to K.M.
{¶19} Appellant stated he was confronted by G.E. as soon as they went into the
dining room. Then G.E. yelled at appellant and pulled out the knife. Appellant stated the
knife entered into evidence as State’s Exhibit 1 was not the knife G.E. pulled out.
According to appellant, the knife G.E. had that day was a black pocket knife, about two
inches long, and had a white blade. G.E. flashed the knife in front of appellant, and
punched appellant in the right ear. Appellant stated G.E. swung first, and appellant
“pushed him off of me in self-defense when he swung on me with his fist.” Appellant
denied punching G.E. in the left ear. When asked if he knew how G.E. got the lump on
his head, appellant testified he saw G.E. punching himself in the head. Appellant
described his relationship with G.E. as “confrontational.”
{¶20} Counsel asked appellant about his two prior domestic violence convictions.
Appellant stated, “yes, I plead guilty to those.”
{¶21} On cross-examination, appellant stated he did not give G.E. the keys when
he asked for them. Appellant admitted that he told Officer Eggeman he would come
speak with him, but he did not do so because he was in Akron to handle medical issues.
{¶22} At the conclusion of the bench trial, the trial court found the State failed to
meet its burden under 2919.25(D) with regard to two prior offenses, because Exhibit 10
was not sufficient to demonstrate a previous conviction of domestic violence. However,
Ashland County, Case No. 21-COA-025 7
the trial court found, based on the credibility of the witnesses and weighing the credibility
of the evidence and the witness testimony, that the State met its burden to establish the
offense of domestic violence, and the State proved beyond a reasonable doubt that there
is one prior offense. The trial court found appellant guilty of domestic violence with a
single prior conviction enhancement, a felony of the fourth degree.
{¶23} As to appellant’s self-defense argument, the trial court found the story
appellant gave was totally inconsistent with the physical evidence, whereas G.E.’s version
of the story is consistent with the evidence. The trial court specifically found appellant’s
testimony lacked credibility.
{¶24} The trial court issued a judgment entry on August 10, 2021, finding appellant
guilty of domestic violence, in violation of R.C. 2919.25(A). The entry also provides the
State proved beyond a reasonable doubt that appellant had one prior conviction of
domestic violence consistent with the requirements of R.C. 2919.25(A) and (D)(3). The
court entered a guilty finding as to Count One, a felony of the fourth degree. The trial
court ordered a pre-sentence investigation, and set the matter for sentencing at a later
date.
{¶25} The trial court held a sentencing hearing and issued a judgment entry of
sentence on November 15, 2021. The trial court imposed a sentence of nine months in
prison.
{¶26} Appellant appeals the judgment entry of the Ashland County Court of
Common Pleas and assigns the following as error:
{¶27} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
Ashland County, Case No. 21-COA-025 8
{¶28} “II. APPELLANT’S CONVICTION WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.”
I. & II.
{¶29} Appellant contends his conviction was against the manifest weight and
sufficiency of the evidence.
{¶30} 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), in which 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.”
{¶31} 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, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). 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.Ashland County, Case No. 21-COA-025 9
{¶32} It is well-established, though, that 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, 2002-Ohio-2126, 767 N.E.2d 216. The jury is free to accept or reject any
and all of the evidence offered by the parties and assess the witness’s credibility. Id.{¶33} Appellant was found guilty of one count of domestic violence pursuant to
R.C. 2919.25(A) and (D). R.C. 2919.25(A) provides as follows: “No person shall
knowingly cause or attempt to cause physical harm to a family or household member.”
R.C. 2919.25(D) provides, in pertinent part: “[w[hoever violates this section is guilty of
domestic violence, and the court shall sentence the offender as provided in divisions
(D)(2) to (6) of this section * * * (3) * * * if the offender previously has pleaded guilty to or
been convicted of domestic violence * * * a violation of division (A) of this section is felony
of the fourth degree * * *.”
Sufficiency – Prior Conviction
{¶34} Appellant contends his conviction for domestic violence is not supported by
sufficient evidence because appellee did not present sufficient evidence of appellant’s
prior conviction for domestic violence, as required by R.C. 2919.25(D)(3). Specifically,
appellant contends Exhibit 9 from the Portage County Municipal Court does not meet the
elements of Criminal Rule 32(C) because Eggeman used the words “form” and “report”
to describe Exhibit 9 instead of “sentencing entry” or “journal entry.”
{¶35} If the existence of a prior offense is an element of a subsequent crime, the
state must prove the prior conviction beyond a reasonable doubt and the factfinder must
find the previous conviction has been established in order to find the defendant guilty on
the subsequent offense. State v. Scott, 5th Dist. Fairfield No. 15-CA-7, 2015-Ohio-5397.
Ashland County, Case No. 21-COA-025 10
“Whenever 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.” R.C. 2945.75(B)(1).
{¶36} The Ohio Supreme Court has held that when, pursuant to R.C.
2945.75(B)(1), the state chooses to offer judgment entries to prove the element of a prior
domestic violence conviction in order to increase the offense level of a later domestic
violence charge under R.C. 2919.24(D)(4), the judgment must comply with Criminal Rule
32(C). State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626. In that
event, the judgment entry must set forth: (1) the fact of a conviction; (2) the sentence; (3)
the judge’s signature; and (4) the time stamp indicating the entry upon the journal by the
clerk. Id. However, the Supreme Court specifically noted that the state may opt to use
other methods to establish the prior conviction, and the method set forth in R.C.
2945.75(B)(1) is not the exclusive method for proving a prior conviction. Id. For example,
“the defendant’s own admission that he had been convicted of domestic violence in the
case to which that entry referred proves at least one prior offense.” Id.{¶37} Additionally, with regard to R.C. 2919.25(D), the Supreme Court of Ohio
explained that “by using the phrase ‘pleaded guilty to’ as an alternative to ‘convicted of,’
the legislature has allowed the state to offer evidence of a defendant’s guilty plea as proof
of a prior offense of domestic violence.” Id.{¶38} Having viewed the evidence in a light most favorable to appellee, we find
the trial court could rationally find sufficient evidence to prove beyond a reasonable doubt
that appellant “previously has pleaded guilty to or been convicted of domestic violence.”
Ashland County, Case No. 21-COA-025 11
The journal entry from the Portage County Municipal Court admitted as Exhibit 9 reflects
that appellant was charged in 1997 under R.C. 2929.25(B). It identifies appellant by his
full name, his date of birth, and social security number. It also states appellant pled no
contest. Though the handwriting is difficult to read, it appears to contain either the name
or initials of a judge. Finally, it includes the sentence, which was 90 days in jail and a
$200 fine, plus court costs. There is a time stamp indicating the entry upon the journal
by the clerk on September 18, 1997. Eggeman testified the birthdate and social security
number listed for appellant on Exhibit 9 matches the information he obtained about
appellant via a background check.
{¶39} Further, this Court has previously held that, “despite a technical error in a
judgment entry or in absence of one, the state can prove existence of a prior conviction
through testimony at trial that links the defendant to a prior conviction.” State v. Scott, 5th
Dist. Fairfield No. 15-CA-7, 2015-Ohio-5397; see also State v. Raia, 11th Dist. Portage
No. 2013-P-0020, 2014-Ohio-2707 (when judgment entry doesn’t contain signature of the
trial judge, the defendant’s admission that he had two prior convictions made the
admission of the judgment entry harmless error); State v. Stiver, 1st Dist. Hamilton Nos.
C-210228, C-210229, 2021-Ohio-3713 (entry without the sentence was sufficient for a
rational trier of fact to find the appellant previously pled guilty to domestic violence when
it contained the charge, the plea, the judge’s signature, and identifying information of the
defendant).
{¶40} Even if there is a technical error in the certified copy of the judgment entry,
the judgment entry establishes appellant was convicted of domestic violence, a first-
degree misdemeanor, and included his sentence. Additionally, appellant admitted to the
Ashland County, Case No. 21-COA-025 12
prior convictions. When asked about his two prior convictions, appellant stated, “yes, I
pled guilty to those.” The Ohio Supreme Court has held that even if the judgment entry
contains a technical violation, the admission is harmless error when appellant’s own
testimony was that he was previously convicted of domestic violence. State v. Gwen,
134 Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626.
{¶41} Appellant cites no law in support of his contention that simply because
Eggeman testified to Exhibit 9 as a “report” or “form,” instead of saying the words
“sentencing entry” or “journal entry,” the trial court’s finding of a prior conviction was not
supported by sufficient evidence. It is clear from Eggeman’s testimony that Exhibit 9 is a
certified copy showing a prior plea or conviction to domestic violence, and Eggeman
specifically stated the social security number and birthdate for appellant listed on Exhibit
9 was the same social security number and birthdate Eggeman obtained from his
background check of appellant. Further, as detailed above, appellant admitted he pled
guilty to two prior charges of domestic violence.
{¶42} We find sufficient evidence exists to support appellant’s conviction.
Manifest Weight - Self-Defense, Alleged Credibility Issues, Prior Conviction
{¶43} Appellant first contends his conviction for domestic violence was against the
manifest weight of the evidence because the evidence established appellant acted in self-
defense. Appellant argues he was not at fault in creating the situation giving rise to the
altercation, he had reasonable grounds to believe some force was necessary to defend
himself against the imminent use of unlawful force from G.E., and his actions were not
likely to cause death or great bodily harm. Specifically, appellant cites to the alleged
Ashland County, Case No. 21-COA-025 13
conflicting testimony from G.E. about when G.E. took out the knife, and argues this
testimony demonstrates his conviction was against the manifest weight of the evidence.
{¶44} To find appellant guilty of domestic violence, the trier of fact would have to
find, beyond a reasonable doubt, that appellant knowingly caused or attempted to cause
physical harm to a family or household member. R.C. 2919.25(A). Appellant denied
punching G.E. in the head. Appellant admitted to “pushing” G.E., but testified he did so
in self-defense. Under former R.C. 2901.05(A), the defendant had the burden of proving
self-defense by a preponderance of the evidence. Beginning on March 28, 2019, Ohio’s
self-defense law was changed to require the prosecution to prove, beyond a reasonable
doubt, the defendant did not act in self-defense, where the defense could reasonably be
found to apply. R.C. 2901.05(B)(1).
{¶45} The state must prove either: (1) the defendant was at fault in creating the
situation giving rise to the affray in which the force was used; (2) the defendant did not
have reasonable grounds to believe or an honest belief that he or she was in imminent
danger of bodily harm; or (3) the defendant used more force than was reasonably
necessary to defend against the imminent danger of bodily harm. In the Matter of T.S.,
5th Dist. Delaware No. 21 CAF 08 0039, 2022-Ohio-975. Self-defense claims are
generally an issue of credibility which is determined by the trier of fact. State v. Jamison,
49 Ohio St.3d 182, 552 N.E.2d 180 (1990); State v. Rengert, 5th Dist. Delaware No. 19
CAA 10 0056, 2021-Ohio-2561.
{¶46} Appellant contends the testimony of G.E. demonstrates that G.E. had the
knife out, with the blade out, when appellant punched G.E. Thus, appellant argues he
was not at fault for in creating the situation giving rise to the altercation, he had reasonable
Ashland County, Case No. 21-COA-025 14
grounds to believe that some force was necessary to defend himself, and he did not use
more force than reasonably necessary to defend himself from the knife.
{¶47} During direct examination, G.E. testified twice (Transcript p. 17-18,
Transcript p. 30) that appellant punched him before he took out the knife. This portion of
G.E.’s direct testimony is the testimony that appellant premises his argument upon:
Q: Is this [Exhibit 1, Gerber multi-tool with knife] what you had on March
13th, right?
A: Yes.
Q: [G.E.], when you said that you pulled the knife out ---
A: Yes.
Q: -- the knife portion out of the tool, right, when did you pull this knife out?
A: Before I headed downstairs.
Q: You had the knife out why?
A: I had it out because I wasn’t sure if I was safe or not because I don’t
know.
{¶48} On cross-examination, G.E. clarified that he opened the knife and placed
the open knife into his pocket before he went downstairs. When asked by counsel for
appellant when he pulled the knife out of his pocket, G.E. stated, “after he punched me.”
At the conclusion of G.E.’s testimony, the court asked a question, stating it was “not clear”
on the matter. The court stated, “on direct examination, when Mr. Perez was asking you
questions for the first time, [G.E.], you indicated that you opened the knife on the Gerber
tool before you went downstairs, is that correct?” G.E. responded, “Yes sir.” The court
further inquired, “And then you put the open knife in your pocket?” G.E. responded, “Yes.”
Ashland County, Case No. 21-COA-025 15
{¶49} G.E. testified twice on direct examination and on cross-examination that
appellant punched him before he pulled the knife out of his pocket. Though there was
some confusion regarding the portion of G.E.’s testimony appellant cites to when he said
he “pulled out” the knife before he went downstairs, the trial court specifically inquired of
G.E. with regards to this statement, and G.E. stated he pulled the blade of the knife out
of the multi-tool set, and then placed the knife back into his pocket before he went
downstairs to attempt to get the keys.
{¶50} If the trier of fact found G.E.’s testimony credible that appellant punched
G.E. before he pulled the knife out his pocket, the state proved, beyond a reasonable
doubt, that appellant was at fault in creating the situation giving rise to the affray, did not
have reasonable grounds to believe that he was in imminent danger of bodily harm, or
used more force than was reasonably necessary to defend against the imminent danger
of bodily harm.
{¶51} Though appellant testified G.E. had the knife out prior to appellant punching
G.E., “this Court will not overturn the trial court’s verdict on a manifest weight of the
evidence challenge only because the trier of fact chose to believe certain witness
testimony over the testimony of others. This includes instances where the trier of fact
reject’s a defendant’s self-serving testimony that he or she acted in self-defense.” In the
Matter of T.S., 5th Dist. Delaware No. 21 CAF 08 0039, 2022-Ohio-975. The trial court
explicitly found G.E.’s version of events to be credible, and specifically found appellant’s
testimony lacked credibility.
{¶52} Appellant also contends his conviction was against the manifest weight of
the evidence because there were credibility issues with G.E. and K.M. In addition to
Ashland County, Case No. 21-COA-025 16
G.E.’s alleged inconsistent testimony about when he took out the knife, appellant cites to
G.E.’s “consciousness of guilt” when he failed to tell Eggeman about the knife immediately
following the incident as proof that the trial court lost its way in convicting appellant.
{¶53} First, as detailed above, G.E.’s testimony regarding the knife was not
inconsistent, as he testified multiple times he pulled the knife out of his pocket after
appellant hit him. While there was confusion about a portion of G.E.’s testimony, the trial
court specifically asked G.E. to clarify his testimony. G.E. clarified that while he pulled
the knife out of the multi-tool prior to going downstairs, he put the tool back into his pocket
after taking the blade out. Additionally, we defer to the trier of fact as to the weight to be
given the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967). The judge, as the trier of fact, is “free to believe all, part, or
none of the testimony of each witness.” Id. The judge in this case heard the witnesses
and viewed the evidence. The judge saw the victim subject to cross-examination, and
heard appellant testify. Having reviewed the evidence presented at trial, we cannot say
the trier of fact lost its way or created a manifest miscarriage of justice in finding appellant
guilty of domestic violence, despite his claim of self-defense.
{¶54} Next, appellant highlights portions of K.M.’s testimony that he deems
inconsistent, and asserts this makes K.M. not credible. However, the inconsistencies
noted are minor, and any of these inconsistencies in the evidence were for the trial court
to resolve. State v. Humphrey, 5th Dist. Delaware No. 20CAA0110, 2021-Ohio-916, citing
State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
Ashland County, Case No. 21-COA-025 17
sufficiency of the evidence.” State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-
Ohio-3113.
{¶55} As to appellant’s “consciousness of guilt” argument, the cases cited by
appellant deal with the flight of the defendant. The law cited by appellant provides, “it is
today universally conceded that the fact of an accused’s flight, escape from custody,
resistance to arrest, concealment, assumption of a false name, and related conduct, are
admissible as evidence of consciousness of guilt, and thus of guilt itself.” State v.
Cultrona, 5th Dist. Tuscarawas No. 2019 AP 06 0019, 2020-Ohio-3250, appeal not
allowed 161 Ohio St.3d 1421, 2021-Ohio-254, citing State v. Eaton, 19 Ohio St.2d 145,
249 N.E.2d 897 (1969). Appellant does not cite any law in which the “consciousness of
guilt” theory applies to the victim in a case, even in a case where the defendant asserts
he acted in self-defense. G.E. was not the accused in this case. He did not flee, escape
from custody, or resist arrest. Though he testified that he initially forgot to give Eggeman
the knife, he did give it to him before leaving the police station.
{¶56} Finally, appellant argues the trial court’s conviction of him was against the
manifest weight of the evidence due to the lack of proof of appellant’s alleged prior
convictions for domestic violence because the document from Portage County Municipal
Court does not comply with Criminal Rule 32(C). Based upon our rationale as detailed
above with regard to Exhibit 9, we find this not the case where the fact-finder clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
overturned and a new trial ordered.
Ashland County, Case No. 21-COA-025 18
{¶57} Upon our review of the entire record, we find appellant’s domestic violence
conviction is supported by sufficient evidence and is not against the manifest weight of
the evidence. Appellant’s assignments of error are overruled.
{¶58} The November 15, 2021 judgment entry of the Ashland County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Delaney, J., concur