State v. Peterson , 2012 Ohio 735 ( 2012 )

[Cite as State v. Peterson, 2012-Ohio-735.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24623
v. : T.C. NO. 10CRB12187
KENNETHA M. PETERSON : (Criminal appeal from
Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of February , 2012.
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TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant City Prosecutor, 335 W. Third
Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
BEN SWIFT, Atty. Reg. No. 0065745, P. O. Box 49637, Dayton, Ohio 45449
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant Kennetha Peterson appeals her conviction and
sentence for one count of assault, in violation of 2903.13(A), a misdemeanor of the first
degree. Peterson filed a timely notice of appeal with this Court on April 25, 2011.
{¶ 2} Between two and three p.m. on the afternoon of November 8, 2010,
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the victim, Ariane Wright, went to visit Bruce Davis, the father of her unborn child, at his
apartment located at 3325 Haberer Avenue in Dayton, Ohio. Wright testified that her
purpose in visiting Davis that day was to ask him to accompany her to a prenatal checkup.
Wright testified that she was four months pregnant at the time. Wright also testified that
her friend, Amber, drove her to Davis’ apartment and waited outside in the car while Wright
went inside the building.
{¶ 3} Upon arriving at Davis’ apartment, which was located on the first
floor of a three-story building with interior hallways lined with doors that opened to
individual units, Wright testified that she knocked on his door. After knocking for less than
a minute, the tenant who lived in the unit right next door to Davis, defendant-appellant
Peterson, stepped out of her apartment, called Wright a “bitch,” and told her to “stop
banging on [Davis’] door.” Wright, who testified that she had no prior interaction with
Peterson, told her to mind her own business.
{¶ 4} Wright testified that at this point in the argument, two younger
women walked out of Peterson’s apartment and into the hallway. Peterson testified that one
of the women was her niece, Davinna Taylor. Taylor stepped directly in front of Wright
and stated that she was in a sexual relationship with Davis. During the ensuing verbal
altercation with Taylor, Wright testified that Peterson approached her from the left side and
struck her on the right cheek with a closed fist, knocking her backwards. Wright testified
that Taylor began to attack her, as well. At this point, the third woman, whom Wright
believed to be Peterson’s daughter, Tashuna Blackshear, came into the hallway and sprayed
Wright in the face with mace. Wright testified that she immediately fell to the floor, and the
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three women, including Peterson, began kicking and taunting her. Wright specifically
testified that she heard Peterson say that she would “beat [Wright’s] baby out of [her].”
{¶ 5} Wright testified that Davis came out of his apartment and separated
the women. Davis then moved Wright into his apartment and attempted to wash the mace
off of her face. Eventually, Davis walked Wright outside to where her friend, Amber, was
waiting in her car. Amber took Wright to her prenatal doctor, where she was initially
treated for the injuries that she received during the attack. Thereafter, Wright was referred
to the hospital for further treatment for her injuries.
{¶ 6} During the trial, Peterson testified in her own defense and gave a very
different account of the events which transpired on the day Wright was assaulted. Initially,
we note that Peterson testified that Wright had visited Davis’ apartment for the first time at
seven a.m. on the date of the incident. Peterson testified that Wright knocked on Davis’
door for several minutes before Peterson came out of her apartment and confronted her.
Peterson testified that Wright then produced a key to Davis’ apartment, unlocked the door,
and went inside. Peterson further testified that once Wright entered Davis’ apartment, she
came into contact with Taylor, who was already in the apartment. Peterson testified that
Taylor informed Wright that she was in a sexual relationship with Davis, and the two
women argued, after which Wright left the building. Wright testified during
cross-examination, however, that she did not visit Davis’ apartment on November 8, 2010,
prior to arriving in the afternoon.
{¶ 7} Peterson also testified that Wright returned to Davis’ apartment
between one and two p.m. on the same day and “banged” on Davis’ door and hers, as well.
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Peterson claimed that Wright was accompanied by a friend when she returned, but Wright
testified that she was alone. Peterson testified that as soon as she opened the door, Taylor
rushed past her and attacked Wright. Peterson testified that she fought with Wright’s
unidentified friend but did not fight with Wright. Peterson also testified that she was the
individual wielding the mace, and she sprayed Wright’s friend, not Wright, with the
substance. Peterson testified that Blackshear and Davis joined in the fight and began
attacking Wright along with Taylor. On cross-examination, Peterson testified that Davis
had a bat and was trying to hit Wright and Blackshear with it, but she struggled with Davis
in order to protect both women. Peterson also testified that Wright’s friend hit her in the
face with a bat during the melee.
{¶ 8} Upon cross-examination, Peterson acknowledged that after the
incident she called the police to her apartment to report the incident. Peterson testified that
when the police arrived at approximately 3:30 p.m., she told them that Wright had been
banging on Davis’ door and her door at 2:45 p.m. Peterson testified that she told the police
that she opened her door and immediately began fighting with Wright. After admitting that
she told the police that she started the fight with Wright, Peterson changed her testimony and
stated that she never fought with Wright, sprayed her with mace, or kicked her. Peterson
testified that she only fought with Wright’s friend. Wright and Peterson were the only two
individuals who testified during trial.
{¶ 9} After a bench trial held on March 4, 2011, the court found Peterson
guilty of assault. At the sentencing hearing on April 19, 2011, the trial court sentenced
Peterson to 180 days in jail, but suspended 150 days, leaving a balance of thirty days to be
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served. The trial court ordered Peterson to pay a $250.00 fine and court costs, and
sentenced her to two years of non-reporting community control. Lastly, the trial court
ordered Peterson to have no contact with Wright. On April 28, 2011, Peterson requested a
stay of execution of her sentence pending the outcome of her appeal, which was
subsequently granted.
{¶ 10} Peterson’s first assignment of error is as follows:
{¶ 11} “APPELLANT’S CONVICTION IS AGAINST THE SUFFICIENCY
AND MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 12} In her first assignment, Peterson contends that there was insufficient
evidence adduced at trial to convict her of assault. Additionally, she argues that the trial
court’s guilty verdict was against the manifest weight of the evidence.
{¶ 13} Although both are raised by Peterson in a single assignment of error,
“a challenge to the sufficiency of the evidence differs from a challenge to the manifest
weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112, 2005-Ohio-6046, 837
N.E.2d 315.
{¶ 14} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry
is whether, after reviewing 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.’ (Internal citations omitted). A claim that a jury verdict is against the
manifest weight of the evidence involves a different test. ‘The court, 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
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its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.’” Id. (Internal citations omitted).
{¶ 15} The credibility of the witnesses and the weight to be given to their
testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230,
231, 227 N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and
hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to
find that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder’s determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson,
2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 16} This court will not substitute its judgment for that of the trier of facts
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. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 17} R.C. § 2903.13(A) describes the offense of assault as follows:
{¶ 18} “(A) No person shall knowingly cause or attempt to cause physical
harm to another or to another’s unborn.”
{¶ 19} Upon review, we conclude that the record convinces us that the
State’s evidence, taken in its entirety, was sufficient to sustain Peterson’s conviction for the
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charged offense. Wright unequivocally testified that Peterson confronted her in the hallway
of Davis’ apartment building and struck her in the face. Wright further testified that
Peterson sprayed her with mace, which caused her to fall down. Wright testified that when
she fell to the ground, Peterson and two other women kicked her and taunted her until Davis
came out of his apartment and stopped the fight. When viewed in a light most favorable to
the prosecution, rational minds could have reached the conclusion that the State proved
beyond a reasonable doubt that Peterson assaulted Wright.
{¶ 20} Peterson’s conviction is also not against the manifest weight of the
evidence. The credibility of the witnesses and the weight to be given their testimony are
matters for the jury to resolve. The only evidence presented by Peterson was her own
testimony which contained several inconsistencies regarding the time of the assault and,
more importantly, the role she played in the attack. The trial court did not lose its way
simply because it chose to believe the State’s witness, which it had a right to do. Having
reviewed the entire record, we cannot clearly find that the evidence weighs heavily against a
conviction, or that a manifest miscarriage of justice has occurred.
{¶ 21} Peterson’s first assignment of error is overruled.
{¶ 22} Peterson’s second and final assignment of error is as follows:
{¶ 23} “THE TRIAL COURT RELIED ON CONDUCT NOT IMPUTED
TO APPELLANT WHEN IMPOSING A SEVERE SENTENCE.”
{¶ 24} In her final assignment, Peterson asserts that the evidence adduced at
trial did not prove beyond reasonable doubt that she “did anything to seriously harm
Wright.” Accordingly, Peterson argues that the sentence imposed by the trial court was
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excessive.
{¶ 25} Initially, we note that the State did not have to prove that Peterson
“seriously harmed” Wright, only that she knowingly caused or attempted to cause harm to
Wright or her unborn baby. As stated in the first assignment, the evidence adduced by the
State established that Peterson hit Wright in the face, sprayed her with mace, and kicked her
after she fell to the ground. Thus, the State proved beyond a reasonable doubt that Peterson
assaulted Wright.
{¶ 26} As we recently held in State v. Grove, 2d Dist. Montgomery No.
24037, 2010-Ohio-6101, ¶ 61:
{¶ 27} “A trial court that imposes a sentence for a
misdemeanor has discretion to determine the most effective way to achieve
the purposes and principles of misdemeanor sentencing, which are to protect
the public from future crime by an offender and to punish the offender. R.C.
2929.21(A) and 2929.22(A). The court may impose any available sanction
or combination of sanctions. R.C. 2929.22 (A). In imposing a sentence for
a misdemeanor, the trial court must consider the factors set out in R.C.
2929.22(B)(1)(a) through (e), and the failure to do so constitutes an abuse of
discretion. R.C. 2929.22(B)(1); State v. Wagner (1992), 80 Ohio App.3d
88 * * * . If the sentence imposed is within permissible statutory limits, a
reviewing court will presume that the trial court considered the sentencing
factors in R.C. 2929.22(B), absent a showing to the contrary.” State v.
Johnson, Greene App. No. 04-CA-126, 2005-Ohio-6826, ¶ 9.
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{¶ 28} The record reveals that the trial court fully considered Peterson’s conduct,
her lack of acceptance of responsibility, and her violent behavior. Peterson’s sentence is
within the statutory range for misdemeanors of the first degree. R.C. 2929.24(A)(1). The
trial court noted that Peterson denied assaulting Wright after she was found guilty and
refused to take any responsibility for her actions in that regard. The trial court also noted
that Wright was pregnant at the time of the assault and that Peterson used excessive force.
Lastly, we note that the trial court suspended 150 days of Peterson’s 180-day jail sentence,
leaving her with but thirty days to serve.
There being no merit to Peterson’s second assignment of error, it is overruled.
{¶ 29} All of Peterson’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Troy B. Daniels
Ben Swift
Hon. John S. Pickrel