State v. Miller ( 2012 )

[Cite as State v. Miller, 2012-Ohio-6115.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 7-12-07
v.
GREGORY DAVID VESTLE MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Napoleon Municipal Court
Trial Court No. 11CRB681
Judgment Affirmed
Date of Decision: December 26, 2012
APPEARANCES:
Keith H. Schierloh for Appellant
Trevor M. Hayberger for Appellee
Case No. 7-13-07
PRESTON, J.
{¶1} Defendant-appellant, Gregory David Vestle Miller, appeals the
Napoleon Municipal Court’s judgment entry of conviction and sentence. We
affirm.
{¶2} On November 10, 2011, Miller had an argument with Candy Myers,
his girlfriend with whom he cohabitated from August 18, 2011 to November 10,
2011, while the two were driving to Wal-Mart. (Dec. 8, 2011 Tr. at 9, 13-15, 42).
During the argument, Miller struck Myers in the stomach with a closed fist. (Id. at
9, 15).
{¶3} On November 11, 2011, a complaint was filed in the Napoleon
Municipal Court of Henry County, Ohio charging Miller with one count of
domestic violence in violation of R.C. 2919.25(A), a first degree misdemeanor.
(Doc. No. 1). On that same day, the trial court issued Myers a temporary
protection order (“TPO”) and Miller entered a plea of not guilty to the charge.
(Doc. No. 5).
{¶4} On December 8, 2011, the matter proceeded to a bench trial, and the
trial court found Miller guilty. (Doc. No. 20). On January 5, 2012, the trial court
sentenced Miller to 30 days in jail but suspended 29 days and placed Miller on
community control for one year. (Doc. No. 22).
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{¶5} On January 19, 2012, Miller filed a notice of appeal. (Doc. No. 25).
This first appeal was assigned appellate case no. 7-12-02; however, the case was
dismissed for lack of a final, appealable order.
{¶6} On May 3, 2012, the trial court resentenced Miller to 30 days at
CCNO, with 29 days suspended and credit for one day served. (Doc. No. 30).
The 29 days were suspended upon conditions that Miller have no other offenses of
violence for two years and complete an assessment through AJA Behavioral and
comply with the treatment plan. (Id.). The trial court also placed him on one year
of community control under the supervision of the court. (Id.).
{¶7} On May 21, 2012, Miller filed a notice of appeal. (Doc. No. 31).
Miller now appeals raising two assignments of error for our review. Since his
assignments of error raise similar issues, we elect to combine them for review,
though we will address them out of the order presented in his brief.
Assignment of Error No. II
The trial court erred when it overruled the defefendant’s [sic]
request for Criminal Rule 29 Motion to dismiss regarding lack
of evidence and the failure to prove the elements beyond a
reasonable doubt.
Assignment of Error No. I
The trial court erred to the prejudice of appellant, when it
entered a judgment of conviction, where such judgment was
against the manifest weight of the evidence.
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{¶8} In his second assignment of error, Miller argues that the trial court
erred by failing to grant his Crim.R. 29 motion to dismiss for a lack of venue and
evidence to prove that the victim and he were household members. In his first
assignment of error, Miller argues that the judgment of conviction was against the
manifest weight of the evidence.
{¶9} Crim.R. 29(A) provides:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction for such offense or offenses.
“Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved
beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261 (1978),
syllabus.
{¶10} This court has previously found that the Bridgeman standard “must
be viewed in light of the sufficiency of evidence test * * *.” State v. Foster, 3d
Dist. No. 13-97-09, *2 (Sept. 17, 1997). When reviewing the sufficiency of the
evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light
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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,
61 Ohio St.3d 259, (1981), paragraph two of the syllabus.
{¶11} On the other hand, to determine whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘[weigh] the evidence and all reasonable inferences, consider the credibility of
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. Thompkins, 78
Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175
(1st Dist.1983). A reviewing court must, however, allow the trier of fact
appropriate discretion on matters relating to the weight of the evidence and the
credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
{¶12} The criminal offense of domestic violence is codified in R.C.
2919.25, which provides that: “[n]o person shall knowingly cause or attempt to
cause physical harm to a family or household member.” R.C. 2919.25(A). As
used in this section, “family or household member” includes “a person living as a
spouse.” R.C. 2919.25(F)(1)(a)(i). “‘Person living as a spouse’ means a person *
* * who otherwise is cohabiting with the offender, or who otherwise has cohabited
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with the offender within five years prior to the date of the alleged commission of
the act in question.” R.C. 2919.25(F)(2).
{¶13} Candy R. Myers testified that, on November 10, 2011, her father
dropped her off at the Napoleon Library where she waited for Miller to pick her up
after he was finished working for the day. (Dec. 8, 2011 Tr. at 6). Myers testified
that, around 4:00 to 4:30 p.m. that day while she was waiting for Miller to pick her
up, Miller telephoned her, and they began an argument about Miller using an
internet dating site to find other women. (Id. at 6-7). During the argument, Miller
told Myers that he was not going to return her car, which he had, and Myers told
Miller that if he did not return her car immediately, she would call the police. (Id.
at 7). Myers testified that, about 20 to 25 minutes later, Miller came with her
vehicle and was very angry with her. (Id. at 7-8). Myers testified that Miller
wanted to drive the car to Wal-Mart to cash his check, but she insisted that she
drive the vehicle since it belonged to her. (Id. at 8). Myers testified that, as she
was driving Miller to Wal-Mart, Miller was yelling and cussing at her, because she
asked him whether he intended to give her the money he owed to her niece and her
daughter. (Id.). According to Myers, at this point Miller starting calling her
“April,” the name of Miller’s ex-wife, and stated that she, Myers, was keeping him
from his children. (Id. at 9). Myers told Miller that she was not April and was not
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trying to keep him from seeing his children, and, in fact, that she had been helping
him try to see his children since he moved to Ohio from Alabama. (Id.).
{¶14} Myers testified that, as they turned left towards Wal-Mart, Miller
struck her in the abdomen causing her to vomit in her mouth. (Id.); (Id. a 15).
Myers testified that she went into the Wal-Mart parking lot, parked the car, and
exited the vehicle toward the building, walking at a “very fast pace.” (Id. at 9-10).
According to Myers, Miller continued yelling and screaming at her as they entered
Wal-Mart, and Miller said “that he was going to hit me again and that he was
going to run my ass over.” (Id. at 10, 11). Myers testified that a Wal-Mart
customer service representative called the police. (Id.). Myers testified that the
Wal-Mart customer service representative escorted her to the back of the store,
where they waited for the police to arrive. (Id. at 11). She testified that,
subsequent to talking with the police, she went to the hospital since she was in a
lot of pain. (Id. at 12). Myers testified that she has several stomach issues,
including GERD, acid reflux, and gastritis. (Id.). Myers testified that the doctor
told her she had internal bruising, and Myers identified State’s Exhibit A as a copy
of the emergency room report with a final diagnosis of “abdominal pain, headache,
anxiety attack.” (Id. at 12-13).
{¶15} Myers testified that, at the time of the incident, she was Miller’s
girlfriend, and she lived with Miller from August 18, 2011 until November 10,
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2011 either at her residence or Miller’s cousin’s residence. (Id. at 13-14). Myer
testified that Miller spent several nights with her during that time, and they had a
sexual relationship together. (Id. at 14). She testified that they prepared meals for
each other, bought food for one another, and she washed both their clothes. (Id. at
14-15). Myers testified that they lived together essentially every night between
the dates mentioned above. (Id. at 15).
{¶16} On cross-examination, Myers testified that Miller struck her with his
right hand left of the center of her abdomen as she was turning the vehicle to the
left. (Id. at 20). Myers testified that the vehicle is a stick-shift, and the clutch is
“down in the center.” (Id. at 20-21, 8). Myers testified that she passed by the
Wal-Mart clerks and customers, without mentioning that Miller had hit her,
heading for the customer service counter because she wanted someone to help her.
(Id. at 22-23). Myers testified that the second sentence from the emergency room
reports states “[t]here’s no acute change when compared with February 2, 2000
study.” (Id. at 25). Myers testified that Miller helped to pay her car payment
while they lived together, and she was asking him about money for the car the day
of the incident, though she did not believe they were going to continue their
relationship. (Id. at 26). Myers testified that she was wearing her seatbelt the day
of the incident, but Miller was not wearing his seatbelt. (Id.).
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{¶17} Terina Losey, the customer service manager at the Wal-Mart in
Napoleon, testified that she was working at the front-end customer service station
on November 10, 2011. (Id. at 28). Losey testified that, on that particular day,
that she witnessed a loud disturbance in the front of the store after a couple entered
the store. (Id. at 29). Losey testified that, as the couple was standing in line at the
customer service center, the man was verbally abusive, and she overheard the
woman say to the man that she should tell them that he hit her. (Id. at 30). Losey
testified that she asked the woman if she could help her, and the woman asked her
to call the police. (Id.). Losey testified that she called the police, came around the
counter and hugged the woman, and escorted her to the back office where she
could have privacy while they waited for the police. (Id.). Losey testified that she
indicated in her police statement that she overheard the man state to the woman “I
will run your ass down.” (Id. at 31). On cross-examination, Losey testified that
she did not witness any physical violence between the couple in the store, but that
Myers was on her phone trying to call someone and crying while they were
standing in line. (Id. at 32). Losey also overheard Miller tell Myers that he did
not owe her any money, and he owed money to someone else. (Id. at 33). Losey
testified that she did not witness any physical injuries on Myers, though she was
not looking for them, either. (Id.).
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{¶18} Napoleon Police Department Patrolman Nicholas Evanoff testified
that, on November 10, 2011, he investigated a reported domestic violence incident
at the Wal-Mart in Napoleon, Henry County, Ohio. (Id. at 35). Patrolman
Evanoff testified that he contacted Miller, and Miller informed him that he told
Myers that he was breaking up with her and moving out of her residence while on
his way to pick her up at the library. (Id. at 35-36). Miller also informed
Patrolman Evanoff that Myers threatened to call the police and report that he hit
her if he did not give her $175 that he allegedly owed her. (Id. at 35-36). On
cross-examination, Patrolman Evanoff testified that he did not document any
injuries upon the victim in this case. (Id. at 37). On redirect, Patrolman Evanoff
testified that it is hard to get a bruise or any photograph of injuries on the stomach
area due to the soft tissue. (Id. at 38). Patrolman Evanoff testified that he asked
Myers if she had any visible injuries, and she stated she had none. (Id. at 39).
{¶19} At this point, the State rested, and Miller moved for an acquittal
under Crim.R. 29(A), which the trial court denied. (Id. at 39-41). Thereafter, the
defense presented the testimony of the defendant. (Id. at 41).
{¶20} Miller testified that he was currently residing between two addresses,
103 Mervin Street and 9398 County Road N., both located in Antwerp, Ohio. (Id.
at 42). Miller testified that Myers’ grandmother lives at the County Road N
address, and Myers would not allow him to legally reside with her since it would
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negatively impact her ability to obtain food stamps. (Id.). Miller testified that his
Uncle Ed Miller and Aunt Donna Miller live at the Mervin Street address, and
between the dates of August 18, 2011 to November 10, 2011, he spent nights at
this address. (Id.). Miller testified that he never resided with Myers’
grandmother, but he did stay with Myers at her home, which is located at 9396
County Road N. (Id.). Miller testified that Myers was his girlfriend. (Id. at 43).
Miller testified that his ex-wife, April, and he lost custody of their children to the
State of Alabama in February 2009, and he was trying to regain custody of his
children. (Id. at 43-44). Miller testified that, three weeks prior to the incident in
this case, he informed Myers that he needed to leave her residence to obtain a
larger residence to accommodate his children. (Id. at 44). Miller testified that
Myers made multiple trips to the emergency room from September to October,
and he believed that these medical trips negatively impacted his ability to regain
custody of his children since his previous wife had prescription drug problems.
(Id. at 45).
{¶21} Miller testified that, prior to picking up Myers at the library, he
called her and informed her could not live with her anymore since he wanted to
regain custody of his children. (Id. at 46). Miller testified that Myers told him
that if he did not stay with her, she would report her car stolen. (Id.). Miller
testified that, when he arrived at the library, he exited the vehicle and attempted to
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walk away from her and the car when Myers informed him that she had his check
in her possession. (Id. at 46). According to Miller, Myers told him that he owed
her $175, but he only owed her just over $70 for money he owed her child and her
niece for band boosters and money he borrowed to get family pictures for Myers.
(Id. at 46-47). Miller testified that Myers wanted the extra money for her car
payment, which he normally paid because she was unemployed due to
absenteeism and her failure to fill out work forms. (Id. at 47). Miller testified that
he did not strike Myers while riding to Wal-Mart, and he was wearing his seatbelt
during the ride. (Id.). Miller testified that, when they parked the car at Wal-Mart,
Myers told him that if he did not pay her the $175, something bad was going to
happen to him. (Id. at 48). Miller testified that Myers then threatened to make
sure that he never sees his children again, and Myers still had his check in her
right pocket during this conversation. (Id.). Miller testified that they exited the
vehicle and walked toward Wal-Mart while she was verbally berating him, and
they went directly to the customer service center. (Id.). According to Miller,
about the time they reached the customer service center, Myers stated that she
should call the cops and report that he hit her. (Id. at 49). Miller testified that he
told Myers he would give her the money, and Myers then handed him the check, at
which point Miller called Myers’ father to ask him if Myers damaged any of his
property. (Id.). Miller testified that Myers’ father indicated that the property was
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not destroyed and he would return his property. (Id.). Miller then hung up the
phone and told Myers that he was not going to give her the money, and Myers
stated she was going to call the police, which is when the customer service woman
at Wal-Mart asked if Myers needed assistance. (Id.). Miller testified that, after the
police were called, he walked directly to the sheriff’s department to have a third
party collect his property. (Id.).
{¶22} Miller testified that he was not checked for any physical injuries.
(Id. at 50). He further testified that, because of her short stature, Myers sits with
the drivers’ seat all the way forward so that there is no room between her and the
steering wheel. (Id.). Miller testified that there is a center console with a gear
shift between the two front seats of the car. (Id.). He further testified that it is
physically impossible to strike someone in the left abdomen with the right hand
when belted in the passenger seat of the vehicle with the steering wheel, center
console, and gear shift in the way. (Id. at 50-51). Miller testified that Myers has
stomach issues, and she needs a portion of her stomach removed, which were the
probable cause of her reported stomach pain. (Id. at 51).
{¶23} On cross-examination, Miller testified that he helped Myers with her
car payment as a courtesy and since he was using the car on occasion. (Id. at 52).
Miller testified that he had sex with Myers when he lived with her, and they
helped each other prepare meals “[t]o an extent.” (Id.). Miller testified that he
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washed his own laundry, and his mail was sent to Myers’ grandmother’s
residence. (Id. at 53). Miller testified that he purchased his own food, and he
lived with Myers for two months. (Id. at 53-54). Miller denied threatening to run
Myers down as Losey testified. (Id. at 55).
{¶24} Miller first argues that the State failed to present sufficient evidence
of venue. However, Miller failed to raise venue as an issue in his Crim.R. 29
motion before the trial court, and therefore, has waived it for appeal purposes.
(Dec. 8, 2011 Tr. at 40); State v. Kremer, 3d Dist. No. 15-05-05, 2006-Ohio-736, ¶
6. Regardless, the testimony at trial sufficiently demonstrated that the domestic
violence incident occurred within Henry County, Ohio, the jurisdiction of the
Napoleon Municipal Court. (Dec. 8, 2011 Tr. at 6, 16, 29, 35); R.C. 1901.02(B).
{¶25} Miller next argues that the State failed to present sufficient evidence
that Myers was a “household member” under R.C. 2919.25. We disagree. The
State presented sufficient evidence to demonstrate that Myers was a “household
member” under R.C. 2929.25(A), because she qualified as a “person living as a
spouse.” R.C. 2919.25(F)(1)(a)(i), (F)(2). The testimony at trial demonstrated
that Miller and Myers were “boyfriend and girlfriend,” lived together for almost
three months just prior to the incident, had a sexual relationship, and shared
expenses and meals together. Consequently, we reject Miller’s sufficiency
argument with respect to this element of the offense.
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{¶26} We also cannot conclude that Miller’s domestic violence conviction
was against the manifest weight of the evidence. Myers testified that Miller struck
her with his right fist left of the center of her abdomen while she was driving him
to Wal-Mart. While Miller denied this allegation, Losey, an independent witness,
testified concerning events subsequent to the physical altercation, and Losey’s
testimony supported Myers’ version of the events. Although there was no
photographic evidence of an injury, Patrolman Evanoff testified that the lack of
any physical evidence in this case was not surprising given that the injury was to
the soft tissue of the victim’s abdomen. The emergency room report admitted into
evidence indicated a final diagnosis of “abdominal pain, headache, anxiety
attack,” all consistent with Myers’ version of the events. Both Miller’s and
Myers’ credibility was questioned at trial—Miller’s due to the State removal of his
children and his previous driving infraction and Myers’ due to her alleged
involvement in defrauding the government in obtaining food stamps. It appears
that the trial court ultimately believed Myers’ testimony over Miller’s testimony,
and credibility is primarily for the trier of fact, who is in a better position to view
the demeanor of the witness. DeHass, 10 Ohio St.2d 230, paragraph one of the
syllabus. Viewing the evidence presented at trial, we cannot conclude as a matter
of law that Miller’s conviction was against the manifest weight of the evidence.
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{¶27} Miller’s first and second assignments of error are, therefore,
overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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