State v. Bailey ( 2012 )

[Cite as State v. Bailey, 2012-Ohio-3274.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24861
Plaintiff-Appellee :
: Trial Court Case No. 2011-CR-471
v. :
: (Criminal Appeal from
ERIC BAILEY : (Common Pleas Court)
:
Defendant-Appellant :
:
...........
OPINION
Rendered on the 20th day of July, 2012.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTONY A. ABBOUD, Atty. Reg. #0078151, Gounaris, Denslow, Abboud Co., LPA, 130
West Second Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Eric Bailey appeals from his conviction and
2
sentence for Domestic Violence, in violation of R.C. 2919.25(A), a misdemeanor of the first
degree, and Disrupting Public Services, in violation of R.C. 2909.04(A)(1), a felony of the
fourth degree. Bailey contends that both convictions are not supported by sufficient evidence,
and are against the manifest weight of the evidence.
{¶ 2} We conclude that Bailey’s conviction for Domestic Violence is
supported by sufficient evidence, and is not against the manifest weight of the evidence. The
testimony of an eyewitness, Bailey’s brother Mark Miller, whom the trial court found
“especially” credible, was that Bailey punched their mother, Mary Miller, in the back, or in the
back of the head, with a closed fist, and tried, unsuccessfully, to take her down to the ground.
{¶ 3} Bailey’s conviction for Disrupting Public Services is also supported by
sufficient evidence, and is not against the manifest weight of the evidence. The testimony of
both Mary Miller and Mark Miller was that Bailey took his mother’s cell telephone, which
was the only telephone in her house. Mark Miller, whom the trial court found especially
credible, saw Bailey, outside the house, throw the cell telephone away, and it was never
recovered. These facts make out a violation of R.C. 2909.04(A)(1). State v. Thomas, 2d
Dist. Montgomery No. 19435, 2003-Ohio-5746, ¶ 62, followed.
{¶ 4} The judgment of the trial court is Affirmed.
I. Eric Bailey’s Altercation with his Mother, Mary Miller
{¶ 5} In January, 2011, Mary Miller was at home with Mark Miller, one of
her twin, fourteen-year-old sons. An older son, Eric Bailey, age 32, arrived and kicked at the
door. Bailey had not been to the home since early 2007, when he had lived there for a month
3
or two. Bailey had food with him that he wanted to heat in Mary Miller’s microwave. He
pushed past his mother, who told him that she was leaving soon, and he had to leave.
{¶ 6} Bailey refused to leave, put his food in the microwave, heated it, and
then took it into the dining room to eat. When he finished, his mother asked him to leave.
He again refused. After several requests and refusals, Bailey told his mother, “You want me
gone, you going to have to call the police.”
{¶ 7} Mary Miller pulled her cell telephone from her pocket and started to
dial 911. She got as far as 9, when Bailey grabbed the phone, and the two began “tussling”
over it. The cell phone was the only telephone in the house. Mark Miller testified as to what
then happened, as follows:
A. Like, I saw him trying to throw her to the ground and get the phone out of
her hand, and her trying to stay up.
Q. So when “he” – this, I’m assuming, and [sic] Eric [Bailey]; is that correct?
A. Yes.
Q. Trying to throw “her” – being your mom; is that correct?
A. Yes,
Q. To the ground, how was he trying to throw her to the ground?
A. Like, he was trying to toss her, like –
Q. How was he – was he holding her at all in any way?
A. Yes. He was behind her.
Q. Okay. And when he was behind her, do you know where his hands or
arms were?
[Cite as State v. Bailey, 2012-Ohio-3274.]
A. He had the phone in his left hand –
Q. Okay.
A. – and the right hand was free? [question mark in original]
Q. And so what was he doing with his right hand?
A. He was – he was using his right hand to try to get leverage to throw her to
the ground.
Q. Did you see your mom going to the ground?
A. No.
Q. Okay. What was going on as he was trying to throw her to the ground?
A. She was – she was saying, “Let go of my phone,” and he wasn’t saying
anything.
Q. So what was your mom trying to do while Eric was trying to throw her to
the ground?
A. She was trying to get away from him with the phone.
Q. What did you do?
A. I was just sitting, looking at them at first. And then I had seen him hit her,
and that’s when she had picked up the ax handle. And then that’s when I got up and
took off my coat and then jumped into it.
***
Q. Where did you see Eric hit your mom?
A. He hit her – it was either to the back of the head or the back.
Q. And could you tell from where you were how hard this hit was?
A. No.
[Cite as State v. Bailey, 2012-Ohio-3274.]
Q. Was it like a shove?
A. No.
Q. Can you approximate for me, if it wasn’t like a shove, was it harder or
softer than a shove?
A. It was harder than a shove.
Q. Was it like a punch?
A. Uh-huh.
Q. So it was like a punch. Do you remember if it was an open fist, closed
fist?
A. It was a closed fist.
{¶ 8} Mary Miller had stumbled over an ax handle during her struggle with
Bailey for the cell phone. She picked it up and, at some point, began swinging it at Bailey.
She hit Mark Miller with the ax handle, but it did not “faze” him.
{¶ 9} When Mark Miller, a 280-pound center and defensive tackle, jumped
into the fray, this resulted in all three upsetting the dining room table and winding up on the
floor. Bailey and his mother continued to struggle with the cell phone, but Bailey ultimately
obtained sole possession. Meanwhile, Mary Miller told Mark to go next door and telephone
the police. Mark Miller initially resisted his mother’s direction, worried that she might be
hurt if he did not stay. But when she again insisted that Mark go next door, he left, went next
door, and contacted the police. Mark Miller testified that from the time Bailey first grabbed
the cell phone until the time Mark Miller left the house was from three to four minutes.
{¶ 10} Mary Miller’s testimony did not contradict Mark’s testimony in any essential
detail, but she did not recall if she was hit in the back. She testified that she is always in a lot
6
of pain, and has learned not to pay any attention to the pain. She also testified that as the
result of a 2007 head injury, she has problems with her memory. She did not testify that
Bailey ever tried to throw her to the ground, but neither did she deny that he had tried to do so.
Also, during the fray, Mary Miller’s attention was focused on the cell phone, because it was
the only record she had of phone numbers and appointments, and her memory was unreliable.
{¶ 11} Mark Miller testified that while he and Bailey were outside the house, he saw
Bailey throw the cell phone away. It was never found.
II. The Course of Proceedings
{¶ 12} Bailey was charged with Domestic Violence, in violation of R.C. 2919.25(A),
with a specification that he had previously plead guilty to, or been convicted of, an offense
involving a family or household member at the time of the violation, making the offense a
fourth-degree felony. He was also charged with Disrupting Public Services, in violation of
R.C. 2909.04(A)(1), a fourth-degree felony.
{¶ 13} Bailey waived a jury and was tried to the court. His mother, Mary Miller, and
his brother, Mark Miller, testified on behalf of the State. Also testifying for the State was the
investigating police detective. Bailey called no witnesses.
{¶ 14} The trial court found “the testimony of Mary Miller and Mark Miller to be
credible, especially that of Mark Miller.” The trial court found Bailey guilty of both
Domestic Violence and Disrupting Public Services, but due to a perceived problem with the
entry presented to prove the prior Domestic Violence conviction, found Bailey guilty of
Domestic Violence without the prior offense specification, making that conviction a
7
first-degree misdemeanor.
{¶ 15} The trial court sentenced Bailey to sixteen months for Disrupting Public
Services, and to 180 days for Domestic Violence, with the sentences to be served
concurrently, for an aggregate sentence of sixteen months.
{¶ 16} From his conviction and sentence, Bailey appeals.
III. The Evidence Is Sufficient to Convict Bailey of Domestic Violence, and his
Conviction for that Offense Is Not Against the Manifest Weight of the Evidence
{¶ 17} Bailey’s First and Second assignments of error are as follows:
THE VERDICT AGAINST MR. BAILEY, FINDING HIM GUILTY OF
DOMESTIC VIOLENCE, WAS NOT SUPPORTED BY THE SUFFICIENCY OF
THE EVIDENCE.
THE VERDICT AGAINST MR. BAILY [sic], FINDING HIM GUILTY OF
DOMESTIC VIOLENCE[,] WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 18} Bailey was charged with a violation of R.C. 2919.25(A), which provides
that: “No person shall knowingly cause or attempt to cause physical harm to a family or
household member.” “Household member” is defined in R.C. 2919.25(F)(1)(a)(ii) as: “Any
of the following who is residing or has resided with the offender: * * * ; (ii) A parent, * * * .”
{¶ 19} Both Mary Miller and Mark Miller testified that Mary Miller is Bailey’s
mother. Both also testified that Bailey had resided with his mother in the past.
{¶ 20} Bailey seems to be arguing, in support of both of these assignments of error,
8
that his mother, the alleged victim, never testified that he hit her, or that he tried to take her to
the ground. It is true that she did not testify, of her own knowledge, as to either of these facts.
But she did testify that she has an unreliable memory, that her focus was on the cell phone,
which she was desperate to retain, and that she is in so much pain regularly that she has
learned to disregard it.
{¶ 21} Mark Miller, who was aloof from the fray at the relevant points, testified that
he saw Bailey punch their mother in the back, or in the back of the head, with a closed fist,
and that he also saw Bailey try to take her to the ground in an effort to wrest the cell phone
away from her. The trial court, as the finder of fact, found Mark Miller to be an “especially”
credible witness. From our review of the transcript, we cannot fault the trial court for so
finding. Although Mary Miller could not corroborate Mark Miller’s testimony concerning
these two acts, neither did she contradict his testimony in this regard; she either was unaware
of being punched from behind, and of Bailey’s attempt to take her to the ground, or she could
not remember these facts.
{¶ 22} In evaluating the credibility of witnesses, the finder of fact is entitled to
substantial deference. State v. Parrish, 2d Dist. Montgomery No. 21206, 2006-Ohio-4161, ¶
27. Upon this record, we cannot say that this is the rare case where the finder of fact lost its
way, creating a manifest miscarriage of justice. State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist. 1983).
{¶ 23} The trial court was permitted to find, from the evidence in the record, that
Bailey punched his mother in the back, or in the back of her head, and that he attempted to
take her down to the ground. “ ‘Physical harm to persons’ means any injury, illness, or other
9
physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). “A
person acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22(B).
{¶ 24} Bailey seems to argue that his purpose was not to harm his mother, but merely
to obtain possession of her cell phone. But the requisite culpability for Domestic Violence is
“knowingly.” Regardless of Bailey’s purpose, it is reasonable to infer that he was aware that
by punching his mother in the back, or in the back of the head, and by attempting to take her
forcefully to the ground, he would probably be causing her some injury, even if only a slight
and fleeting injury. Thus, he could reasonably be found to be guilty of having knowingly
attempted to cause her physical harm, which is all that is required to make out a violation of
R.C. 2919.25(A).
{¶ 25} Bailey’s conviction for Domestic Violence is not against the manifest weight
of the evidence. Perforce, therefore, it is supported by sufficient evidence, since there is
evidence in the record, in the form of Mark Miller’s testimony, that, if believed, would
persuade a reasonable mind of Bailey’s guilt beyond reasonable doubt. State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 26} Bailey’s First and Second assignments of error are overruled.
IV. Bailey’s Conviction for Disrupting Public Services Is Supported by Sufficient
Evidence, and Is Not Against the Manifest Weight of the Evidence
{¶ 27} Bailey’s Third and Fourth Assignments of Error are as follows:
THE VERDICT AGAINST MR. BAILEY, FINDING HIM GUILTY OF
10
DISRUPTING PUBLIC SERVICES[,] WAS NOT SUPPORTED BY THE
SUFFICIENCY OF THE EVIDENCE.
THE VERDICT AGAINST MR. BAILY [sic], FINDING HIM GULTY OF
DISRUPTING PUBLIC SERVICES, WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 28} Both Mary Miller and Mark Miller testified that Mary Miller’s “flip-top” cell
phone was the only phone they had available at the house. Mark Miller testified that after he
left the house, he saw Bailey, by then also out of the house, throw Mary Miller’s cell phone
away. It was never found.
{¶ 29} There does not seem to be a serious weight-of-the-evidence issue with respect
to Bailey’s Disrupting Public Services conviction. The trial court found both Mary Miller
and Mark Miller to be credible witnesses, and there seems no reason to discredit their
testimony concerning the cell phone. The issue Bailey raises is whether his throwing his
mother’s cell phone away constitutes a violation of R.C. 2909.04(A)(1), which provides as
follows:
No person, purposely by any means or knowingly by damaging or tampering
with any property, shall do any of the following:
(1) Interrupt or impair television, radio, telephone, telegraph, or other mass
communications service; police, fire, or other public service communications; radar,
loran, radio, or other electronic aids to air or marine navigation or communications; or
amateur or citizens band radio communications being used for public service or
emergency communications;
11
***
{¶ 30} Bailey cites State v. Bedford, 9th Dist. Summit Nos. 25048 and 25066,
2010-Ohio-3577, for the proposition that merely taking a person’s cell phone and throwing it
away does not violate R.C. 2909.04(A)(1). The court of appeals in that case analyzed the
issue by applying State v. Robinson, 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190,
which involved a prosecution for violating R.C. 2909.04(A)(3). That statute provides as
follows:
No person, purposely by any means or knowingly by damaging or tampering
with any property, shall do any of the following:
***
(3) Substantially impair the ability of law enforcement officers, firefighters,
rescue personnel, emergency medical services personnel, or emergency facility
personnel to respond to an emergency or to protect and preserve any person or property
from serious physical harm.
{¶ 31} Notwithstanding the differences between R.C. 2909.04(A)(1) and R.C.
2909.04(A)(3), the court of appeals in State v. Bedford applied State v. Robinson, and found
its facts distinguishable. In Robinson, the defendant “smashed” the only cell phone available
to the victim, disabling it, and eliminating the victim’s only way of contacting the police
through 911. Robinson, ¶ 8. In Bedford, the defendant took the victim’s cordless phone and
deprived her of the use of it for some time. But the victim had access to “at least one
standard corded phone,” so that her telephone service was not “interrupted or impaired in any
significant way.” Bedford, ¶ 11.
[Cite as State v. Bailey, 2012-Ohio-3274.]
{¶ 32} In the case before us, like Robinson, but unlike Bedford, Mary Miller, Bailey’s
victim, had no access to telephone services other than her cell phone, which Bailey threw
away, and which was never found.
{¶ 33} We have also analyzed a conviction under R.C. 2909.04(A)(1) by looking to
see whether the victim was left with any telephone service. In State v. Thomas, 2d Dist.
Montgomery No. 19435, 2003-Ohio-5746, ¶ 62, we held that a defendant who had ripped
a telephone from the victim’s wall and left her apartment with the telephone in his possession
had violated the statute. The victim “was forced to contact the police from a pay phone,”
implying that she had no other telephone service in her apartment. Id.{¶ 34} We find the case before us to be indistinguishable from State v. Thomas. By
taking Mary Miller’s only telephone from her home and throwing it away so that it could not
be found, Bailey deprived her of telephone service as effectively as the defendant in State v.
Thomas.
{¶ 35} We conclude that Bailey’s conviction for Disrupting Public Services is
supported by sufficient evidence, and is not against the manifest weight of the evidence.
Bailey’s Third and Fourth assignments of error are overruled.
V. Conclusion
{¶ 36} All of Bailey’s assignments of error having been overruled, the judgment of
the trial court is Affirmed.
.............
DONOVAN and HALL, JJ., concur.
13
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
Antony A. Abboud
Hon. Dennis J. Adkins
Case Name: State of Ohio v. Eric Bailey
Case No: Montgomery App. No. 24861
Panel: Fain, Donovan, Hall
Author: Mike Fain
Summary: