State v. Balinski ( 2022 )

[Cite as State v. Balinski, 2022-Ohio-3227.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110929
v. :
RAYMOND BALINSKI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 15, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-643692-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl J. Mazzone, Assistant Prosecuting
Attorney, for appellee.
Law Office of John T. Forristal and John T. Forristal, for
appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Raymond Balinski appeals his conviction for
domestic violence after a bench trial before the Cuyahoga County Court of Common
Pleas. He contends that his conviction was not supported by sufficient evidence and
was against the manifest weight of the evidence. For the reasons that follow, we
affirm the conviction.
I. Factual Background and Procedural History
On December 11, 2019, a Cuyahoga County Grand Jury indicted
Raymond Balinski for three counts of rape, one count of attempted rape, one count
of felonious assault and one count of domestic violence. Each of the rape,
attempted-rape and felonious-assault charges carried a notice of prior conviction
and a repeat-violent-offender specification. The domestic-violence charge also
carried a notice of prior conviction. The charges all related to alleged conduct with
a woman named K.K. between April 27, 2019 and July 30, 2019.
At the time the indictment was filed, Balinski was in federal custody.
After lengthy pretrial proceedings, the case proceeded to a bench trial on July 8,
2021.
The State’s Case
The state presented one witness at trial — K.K.
K.K. testified that she has lived at the same address in Cleveland for
“pretty much” her entire life, including from April through August 2019. She said
she lived on the bottom floor of a duplex. She said her parents lived on the upper
floor of the home and she had a lot of contact with them.
K.K. testified that during the spring and summer of 2019, she worked
as a caregiver in a nursing home. She said she did not have a driver’s license, so her
father drove her to work every day.
K.K. said that in February or March 2019, she met Raymond Balinski
on the social-media platform Facebook. She said that they communicated through
Facebook and they also spoke over the phone. She testified that she told Balinski
where she lived and they both expressed romantic interest in each other. K.K.
testified that Balinski came to her house in April 2019 after “a couple weeks” of
talking with him, and she invited him in. K.K. said they talked and had consensual
sex that evening and Balinski stayed the night.
K.K. testified that Balinski stayed at her house the next day, too. She
said Balinski told her that “he had no place to go and he was going to work real close
to my house so he was just going to stay at my house.” K.K. said that she and Balinski
slept on the same futon that night without engaging in any sexual activities.
K.K. testified that in the morning of the next day, she told Balinski he
could not stay with her and he had to leave. She said she told him that he could not
live with her “unless you live here and pay rent.” She said Balinski responded, “Oh,
I’ll pay rent.” She testified that this statement did not change her opinion about
Balinski staying in her home. K.K. testified that Balinski then went to work. She
admitted that her parents were home while Balinski was at work but she did not go
upstairs and tell her parents that a man intended to live with her against her wishes.
K.K. testified that she allowed Balinski back into her home when he
returned that day. She said that she did so “[b]ecause I was scared of him, just the
way he was. * * * Because of the way he would call me and talk to me and he was
very moody.” K.K. also said that she was aware that Balinski had left some items in
her home, “so I figured he had to come back and pick up his tools and his bag.” K.K.
testified that she told Balinski to leave but he did not leave.
K.K. described the next several months with Balinski as “87 days of
hell.” She testified that while Balinski was living with her, she “pretended like
everything was okay, but it was awful.” Specifically, she described the following:
So he would jump on top of me and he would look at porn on his phone
and then he would have sex with me, and I mean hard. I’m saying two,
three, four times a day. I would go to work, he would call me and I’d
have to take [a] picture of me at work, send him pictures of when I
would be going to and from work. I would leave every day with my dad
because he drove me and we’d go to Marc’s and get a bite to eat, maybe
stop at the ATM, maybe stop and get something, get to work a few
minutes early just to have that 10, 15 minutes for myself.
So I would be at work and he was constantly texting and calling me,
accusing me of cheating on him, sleeping with people at my work. I
would come home; he would jump on top of me. I would come home
and sometimes he would inject his finger up inside my vagina and twirl
it to see if I had sex with anyone else while I was at work. He did that
multiple times. And then he would make me — he would have a bath
drawn for me and force me to go in the bathtub and do other things to
him, too.
He also wouldn’t let me smoke cigarettes and when he would light
them, he would smoke my cigarettes and throw them at me when they
were lit.
He also had me buy him drugs at 2, 3, 4 in the morning, use my money
and go buy him drugs. When I’d return home, he would check me for
his crack cocaine on my whole body, in my hair and everywhere on my
whole body, and then he would say I took some of the drugs and he
would jump on top of me and put his hand over my mouth and I
couldn’t breathe and then beat me so bad in my stomach that I had
broken ribs about three weeks after he was staying with me. I never
went to the hospital because, one, I didn’t have insurance; and two, I
was scared that he would kill me or my family.
He also threw me against the fridge, locked me in the bathroom. I
would have to put a towel down. I’d turn on the bathtub and I would
sit there crying for help. Nobody could hear me. It’s 2, 3 in the
morning. I would try to run away; he would follow me.
He threw me in the closet in the extra bedroom. He would throw me in
there. I had to sit in there and he was — I don’t know if he was crazy or
what — but he was not normal where he heard noises in the house and
he thought someone was coming after me. Hallucinating. That’s the
word I’m looking for. But he would take it out on me and just beat me
and punch me and hit me. I had a black eye; he hit my back. I couldn’t
even leave the house. Every time I left the house, he would run after
me, grab me by my hair. I don’t know how many times my hair was
falling out. Just the bruises and the throwing.
I made phone calls for him — he would have me call to see if his urine
was clean or dirty — and if I didn’t make the right phone call, he would
get crazy and pick me up and throw me and beat me up. But the sex
was at least three to four times a day, daily, for 87 days when he was in
my life.
K.K. testified on direct examination that Balinski never used any
physical violence to induce a sexual encounter with her but she said that no sexual
encounters after the first couple times were consensual. On cross-examination, K.K.
testified that Balinski “has used force,” including “[p]ushing me down and getting
on top of me and forcing me to have sex, that’s — you can’t move. * * * Screaming
‘No.’” K.K. admitted that her parents, who lived upstairs from her, never heard
screaming or reported this alleged screaming to anyone.
K.K. testified that Balinski only hit her with his fists and arms; he
never kicked her, head-butted her or used any other part of his body to hit her.
K.K. testified that she had broken ribs on her left side in May or June
2019. She said the pain lasted for a month. She said she could not move and that it
was hard to bend over, put on her shoes or do anything at work. She described that
it was painful to get into and out of her father’s car during that month. She admitted
that she did not go to a doctor, call the police or seek medical attention. She also
admitted that she did not tell her parents when she was experiencing pain in her
ribs. She said she did not seek medical attention because she was scared of Balinski.
She said that Balinski became “a different person” when he was using drugs.
K.K. testified that in addition to this pain in her ribs, she had bruising
on her eye, back and arm.
She said that Balinski gave her a black eye after he got mad and
punched her. She said this happened while she was still working at the nursing
home, but she wore a lot of makeup to cover up the bruise. K.K. identified three
photographs that she had taken of herself at her work. In the photographs, K.K. is
looking directly into the camera and has a visible bruise under her left eye. K.K.
could not recall when she took these photographs, but she said they depict the same
bruise and she took them on different days “probably in July.” K.K. said that she
provided these pictures to the police.
K.K. testified that “some people at work” asked her about the black
eye and told her not to go back home. But she said she was scared so she kept going
back home. K.K. described her fear as follows:
I was afraid for my life, my family’s life, like I was just scared of him.
You don’t know him how I knew him, how he was controlling. I
couldn’t even go to the bathroom by myself. I couldn’t go do laundry.
I couldn’t go to the store by myself. I was only allowed to go to work
and back home. I couldn’t even go to sleep at night. He would grab me,
pick me up by my hair and I would be up all night with him. And the
next day he would wake up and do the same things all over again. It
was a nightmare.
K.K. testified that she developed bruises on both of her arms. She
identified a photograph that she had taken of her right arm at work; the photograph
depicts a bruise on an arm. K.K. testified that she developed this bruise in July.
K.K. testified that she had bruising on her back above her right
shoulder. She identified a photograph she had taken of herself in the bathroom of
her house. The photograph depicts a mirror reflecting K.K.’s back. A bruise is visible
in the mirror on K.K.’s back, at her shoulder. K.K. testified that Balinski caused this
bruise by punching her with his fists.
K.K. admitted that she never confided in her father — who routinely
drove her to work — about what she claims Balinski did to her. She further admitted
that she never called the police from her place of employment to make a report. She
also admitted that she willingly sent Balinski pictures of her chest between April and
July 2019.
K.K. testified that she bought “crack cocaine” for Balinski while he
lived with her. When the prosecutor asked K.K. about her own use of illegal
substances on direct examination, K.K. testified as follows:
Q: At any point in time, did you use any illegal substances with Mr.
Balinski?
K.K.: Yes.
Q: What substance did you use?
K.K.: The crack cocaine when we were in the bathroom, and then
alcohol.
***
Q: And do you recall when that lone time you consumed the crack
cocaine, when in this period of time this was?
K.K.: It was the whole time.
Q: No, you, personally.
K.K.: Oh, myself? Just a couple times, because he would buy it and do
it all. He would grab it from me and then he would just do it all.
***
Q: How many times did you use the crack cocaine with Mr. Balinski?
K.K.: Really never. It was once or twice. It was a quick hit and I never
really did it anyways because I didn’t know how to do it.
Q: Was it your own choice to use that crack cocaine?
K.K.: No.
***
Q: Why did you consume the drugs?
K.K.: Because he locked me in the bathroom and when we were in the
bathroom together, it’s kind of like I inhaled some of it.
Q: So when you said you inhaled some of it, did you physically put —
K.K.: No, no.
Q: — the crack cocaine pipe in your mouth and take an inhale, or was
this secondary?
K.K.: Secondary.
On cross-examination, defense counsel continued the line of
questioning, and K.K. testified as follows:
Q: And you were using drugs?
K.K.: No.
Q: Well, you indicated on your direct examination that you used — you
smoked crack cocaine.
K.K.: It was surroundings.
Q: Well, first you said you smoked it and then later you said you got it
through secondhand smoke.
K.K.: Right.
Q: So were you using crack cocaine?
K.K.: No.
***
Q: * * * Now you’re saying you didn’t use any crack?
K.K.: Right.
K.K. further testified on cross-examination that she did not use
powder cocaine while Balinski lived with her. Defense counsel impeached that
testimony by offering to play a recording of her telling a police officer that she had
been sober for 13 months but had ingested a line of cocaine. K.K. said it was not
necessary to play the recording because she believed that she did say that.
K.K. further admitted that she tested positive for methamphetamine,
but she claimed that this was a “false positive” and she never used
methamphetamine.
K.K. testified that she went to the police about Balinski on July 26,
2019. She said that she waited to go to the police until Balinski “left to go back to
prison.” She said that at that time “I knew I would be safe” and “I knew he couldn’t
come after me.”
On cross-examination, K.K. admitted that she told the police officer
during this encounter “that the sex was consensual but [Balinski] would take
control.” K.K. further admitted that the officer discussed potential charges with her
and she told the officer that she did not “like” the rape charge because Balinski was
her boyfriend.
K.K. identified herself in still images taken from a police body-worn
camera during her interaction with police on July 26, 2019. These images depict the
bruises on K.K.’s right arm and back from the police camera’s point of view. One of
the images bears a date stamp indicating that the image was taken on July 26, 2019.
K.K. admitted that the police officer asked her to go downtown to have more
photographs taken but she did not do so.
K.K. testified that a detective from the police department’s sex-crimes
unit followed up with her sometime between a couple days and a week after she
made her initial report.
K.K. testified that Balinski called her numerous times and sent
“hundreds and hundreds of letters” to her after he entered federal custody.
On cross-examination, K.K. at first testified that she did not
communicate with Balinski while he was in federal custody. When defense counsel
asked about a three-way call involving K.K. and Balinski, K.K. admitted that she did
talk with Balinski once after he entered federal custody.
K.K. identified five letters she received from Balinski while he was in
custody. The letters contain Balinski’s statements, including the following:
JULY 27, 2019: I gotta talk about something that is Important! When
we butted heads I never thought you would have bruised like that —
and I’m wrong — but some how, it hurts me more to see the results of
not the damage we have done but more what we could have done
positive[.] * * * I’m sorry for everything I have done to hurt you
including physical shit — No Excuse or reason[.]
JULY 31, 2019: I know I was cruel abusive & unfair but I was so
frustrated & scared — which is no excuse but took a hold of me.
AUGUST 1, 2019: I miss you so much and regret how I treated you * * *.
Thank you[] for putting up with my * * * abusive ways. * * * Anyways
never again trying to control you with me holding you down and telling
you to shut up. I was wrong baby and it hurts me now thinking back
how I hurt you[.]
AUGUST 10, 2019: I DO LOVE YOU and I’m sure a lot of people would
disagree [especially] after I head butted you — which I regret very
much[.] I was wrong all the way around the board.
AUGUST 4, 2020: I love you so thats what I’ll go by! until otherwise. Saw
the pictures you took of yourself nice black eye [K.K.] — I never ever hit
your face whats up with that!
The trial court admitted the photographs that K.K. had taken of
herself and the two still images from the police body-worn camera, over the
defense’s objection.1 The court admitted, without objection, the letters K.K. said
Balinski had sent her after he entered custody. The court also admitted, without
objection, certified court records from the Elyria Municipal Court documenting that
Balinski had a prior conviction for domestic violence from 1996. Balinski stipulated
that the Elyria records related to him.
The state then moved for a nolle prosequi as to Count 4 (attempted
rape) and moved to amend Count 5 from felonious assault to attempted felonious
1 Balinski does not challenge this evidentiary ruling on appeal.
assault. The defense did not object to either request and the court modified the
indictment accordingly.
Balinski’s Motion for Judgment of Acquittal and the Defense Case
At the close of the state’s case, Balinski moved for acquittal pursuant
to Crim.R. 29(A), arguing that the state had failed to present sufficient evidence to
support a conviction on any of the offenses with which he had been charged. As to
the domestic-violence count, Balinski argued that it is not clear how K.K. obtained
the bruises depicted in the photographs or when K.K. developed those bruises. The
trial court denied the motion.
Balinski called one witness in his defense — Arnaldo Torres, a
sergeant in the Cleveland Police Department’s Sex Crimes Unit. Torres testified that
he had been with the sex-crimes unit since January 2019. He said he was not a
detective until he received that assignment; he had been “basically a computer guy”
before becoming a detective. Torres said he interviewed K.K. on July 30, 2019. He
admitted that he did not take any photographs of K.K.’s home, did not seek to
interview K.K.’s parents, did not seek to interview K.K.’s coworkers and did not seek
to interview Balinski. He testified that he did speak with one of K.K.’s neighbors but
he did not document about what he and the neighbor spoke.
The defense then rested and Balinski renewed his Crim.R. 29(A)
motion for acquittal. The court denied the motion.
The Verdict, Sentence and Appeal
After deliberating, the trial court found Balinski guilty of domestic
violence and found that Balinski had a prior conviction for domestic violence. The
court found Balinski not guilty of the remaining counts.
The trial court proceeded directly to sentencing after rendering its
verdict. The court announced a sentence of 17 months on the conviction and granted
credit for the approximately 425 days Balinski spent in pretrial custody.
Balinski appealed his conviction and assigned two errors for our
review:
Assignment of Error No. 1: The trial court erred by failing to grant a
judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and
thereafter entering a judgment of conviction of the offense as those
charges were not supported by sufficient evidence, in violation of
defendant’s right to due process of law, as guaranteed by the
Fourteenth Amendment to the United States Constitution.
Assignment of Error No. 2: Appellant’s conviction is against the
manifest weight of the evidence.
II. Law and Analysis
A. First Assignment of Error — Sufficiency of the Evidence
Balinski contends that the state did not present sufficient evidence to
support a conviction for domestic violence. He says the trial court should have
granted his Crim.R. 29(A) motion for acquittal on that count.
A Crim.R. 29(A) motion for acquittal tests the sufficiency of the
evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. Crim.R.
29(A) mandates that the trial court issue a judgment of acquittal where the state’s
evidence is insufficient to sustain a conviction for an offense. Crim.R. 29(A) (the
trial court “shall order the entry of a judgment of acquittal of one or more offenses
* * * if the evidence is insufficient to sustain a conviction of such offense or
offenses”); State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶ 21.
Accordingly, we apply the same standard of review to a trial court’s denial of a
defendant’s motion for acquittal as we use when reviewing sufficiency of the
evidence. Id. at ¶ 21 (“Crim.R. 29(A) and sufficiency of evidence review require the
same analysis.”), citing Cleveland v. Pate, 8th Dist. Cuyahoga No. 99321, 2013-
Ohio-5571, ¶ 12.
A challenge to the sufficiency of the evidence supporting a conviction
requires a determination of whether the state has met its burden of production at
trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing
State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). Whether the
evidence is legally sufficient to support a verdict is a question of law. Thompkins at
386.
An appellate court’s function when reviewing the sufficiency of
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince a reasonable
juror of the defendant’s guilt beyond a reasonable doubt. See, e.g., State v.
Bankston, 10th Dist. Franklin No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that “in a
sufficiency of the evidence review, an appellate court does not engage in a
determination of witness credibility; rather, it essentially assumes the state’s
witnesses testified truthfully and determines if that testimony satisfies each element
of the crime”). The appellate court must determine “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77,
quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus.
The elements of an offense may be proven by direct evidence,
circumstantial evidence or both. See, e.g., State v. Wells, 8th Dist. Cuyahoga No.
109787, 2021-Ohio-2585, ¶ 25, citing State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d
674 (1991). “Direct evidence exists when ‘a witness testifies about a matter within
the witness’s personal knowledge such that the trier of fact is not required to draw
an inference from the evidence to the proposition that it is offered to establish.’”
Wells at ¶ 25, quoting State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-
4047, ¶ 13. Circumstantial evidence is “evidence that requires ‘the drawing of
inferences that are reasonably permitted by the evidence.’” Wells at ¶ 25, quoting
Cassano at ¶ 13; see also State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-
Ohio-3683, ¶ 37 (“[C]ircumstantial evidence is the proof of facts by direct evidence
from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind.”). Circumstantial evidence
and direct evidence have “equal evidentiary value.” Wells at ¶ 26, citing State v.
Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691, ¶ 12.
Balinski argues that “[t]here is absolutely no evidence” that he
harmed K.K. We readily find sufficient evidence in this record.
Under Ohio law, a person commits the crime of domestic violence by
“knowingly caus[ing] or attempt[ing] to cause physical harm to a family or
household member.” R.C. 2919.25(A).
Here, K.K. testified that Balinski lived with her in her home from April
through July 2019. K.K. said that during these “87 days of hell,” Balinski punched
her, beat her up, grabbed her hair, threw lit cigarettes at her and threw her into a
refrigerator and into a closet. She testified that he hit her so hard in the stomach
that she had trouble breathing and was in pain for a month. She said he got mad
and punched her, causing a black eye. She testified that he punched her in July 2019,
causing a bruise on her back; the existence and timing of this injury was
corroborated with a photograph she took of herself and a police body-worn camera.
A conviction may rest solely on the testimony of a single witness, if
believed. See, e.g., State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-
Ohio-1274, ¶ 38; State v. Dudley, 9th Dist. Summit No. 28364, 2017-Ohio-7044,
¶ 10. K.K.’s testimony that Balinski was cohabiting with her and caused and
attempted to cause her physical harm in the ways she described was sufficient to
sustain Balinski’s conviction. See State v. Bagwell 8th Dist. Cuyahoga No. 107922,
2019-Ohio-3187, ¶ 5, 23 (victim’s testimony that the defendant lived with her in a
duplex and smacked her face hard enough that she “saw stars” was sufficient to
sustain a domestic-violence conviction, even in the absence of a visible injury);
Cleveland v. Amoroso, 8th Dist. Cuyahoga No. 100983, 2015-Ohio-95, ¶ 7, 30–31
(victim’s testimony that her husband lived with her, punched her in the throat,
twisted her arm and “grabbed [her] up against the wall” was sufficient to sustain a
domestic-violence conviction, even in the absence of a visible injury).
While K.K.’s testimony was sufficient on its own to sustain the
conviction, we note that her testimony was corroborated by photographs that she
took of herself and by images from a police body-worn camera.
As the state’s evidence was legally sufficient to support a guilty verdict
on the domestic-violence count, the trial court correctly denied Balinski’s Crim.R.
29(A) motion as to that count. We therefore overrule Balinski’s first assignment of
error.
B. Second Assignment of Error — Manifest Weight of the Evidence
Balinski contends that his conviction is against the manifest weight of
the evidence.
A manifest-weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion at trial. See,
e.g., State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26 (citing
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541 (1997)); State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.
When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, the court of appeals sits as a “thirteenth juror” and
may disagree with the factfinder’s resolution of conflicting testimony. Thompkins
at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct. 2211, 72 L.Ed.2d 652 (1982).
The reviewing court must examine the entire record, weight the evidence and all
reasonable inferences that may be drawn from the evidence, consider the witnesses’
credibility 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. Thompkins at 387, citing State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In conducting
this review, this court remains mindful that the credibility of witnesses and the
weight of the evidence are matters primarily for the trier of fact to assess. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraphs one and two of the
syllabus. Reversal on manifest-weight grounds is reserved for the “exceptional case
in which the evidence weighs heavily against the conviction.” Thompkins at 387,
quoting Martin, supra.
Balinski argues that K.K.’s testimony is not credible, and he says there
is a lack of corroborating evidence for her story. He argues that K.K. did not seek
medical attention for any alleged injuries and did not tell her parents about the
alleged abuse, despite them living upstairs from her and despite being alone with
her father every day when she rode with her father to work. Balinski points out that
K.K. admitted to using crack cocaine and alcohol with him. He argues that K.K.’s
testimony was inconsistent, including with respect to her drug use, communications
with police and communications with Balinski after he entered federal custody.
Balinski argues that “[s]o many things simply do not add up” in the state’s case, and
he points out that the trial court “obviously did not believe” substantial portions of
K.K.’s testimony because it acquitted Balinski of numerous counts.
In reviewing the record, there are some inconsistencies in the state’s
case and in K.K.’s testimony. For instance, the state introduced Balinski’s written
statements that he head-butted K.K., but K.K. testified that Balinski never head-
butted her. K.K. testified on direct examination that Balinski never used physical
force to compel sexual conduct, but on cross-examination she said he did use
physical force to make her have sex. K.K. also inconsistently described her own drug
use, at first saying that it was “a quick hit” of crack cocaine once or twice and then
saying she was just around Balinski when he was smoking crack cocaine and did not
use it herself. She also acknowledged that she told the police officer that she used
powder cocaine, despite her testimony that she never used powder cocaine. The trial
court surely factored the inconsistencies in the evidence into its verdict acquitting
Balinski of all but the domestic-violence count.
In looking at the record as a whole, though, we cannot say that
Balinski’s domestic-violence conviction was against the manifest weight of the
evidence. A defendant is not entitled to reversal merely because certain aspects of a
witness’s testimony are inconsistent or contradictory. E.g., State v. Wade, 8th Dist.
Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38 (“‘A conviction is not against the
manifest weight of the evidence solely because the [factfinder] heard inconsistent
testimony.’”), quoting State v. Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-
Ohio-4547, ¶ 11; State v. Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286,
¶ 37 (“‘While [a factfinder] may take note of the inconsistencies and resolve or
discount them accordingly, * * * such inconsistencies do not render [a] defendant’s
conviction against the manifest weight or sufficiency of the evidence.’”), quoting
State v. Nivens, 10th Dist. Franklin No. 95AP09-1236, 1996 Ohio App. LEXIS 2245(May 28, 1996).
K.K.’s testimony was consistent in many material respects. She
testified about various physical injuries Balinski caused her and these injuries were
documented in photographs. A police body-worn camera documented the bruise on
K.K.’s back, which K.K. said Balinski caused by punching her in July 2019. K.K. also
testified that Balinski threw lit cigarettes at her, threw her into a refrigerator and
into a closet, held her down and pulled her hair.
K.K. reported the physical abuse promptly after Balinski self-reported
to federal custody, when she knew he would no longer be living with her. The timing
of this report is consistent with K.K.’s testimony that she was afraid of Balinski.
Moreover, Balinski apologized in writing for head-butting K.K. and
acknowledged that he caused her bruising. He wrote to her, “I’m sorry for
everything I have done to hurt you including physical shit * * *.” He called himself
abusive several times in his letters. When referring to the photographs of K.K.’s
bruised eye, Balinski did not claim that he never hit K.K.; instead, he wrote, “I never
ever hit your face * * *[.]” (Emphasis added.).
After a thorough review of the record and after considering Balinski’s
appellate arguments, we cannot say that this is an exceptional case where the trier
of fact clearly lost its way and created a manifest miscarriage of justice such that a
conviction must be reversed. We, therefore, overrule Balinski’s second assignment
of error.
III. Conclusion
Having overruled each of Balinski’s assignments of error for the
reasons stated above, we affirm his conviction for domestic violence.
It is ordered that the appellee recover from the appellant the 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
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR