State v. Watts , 2012 Ohio 5822 ( 2012 )

[Cite as State v. Watts, 2012-Ohio-5822.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 12CA0005
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DARRELL WATTS WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. CRB-11-10-01443
DECISION AND JOURNAL ENTRY
Dated: December 10, 2012
CARR, Judge.
{¶1} Appellant, Darrell Watts, appeals from the judgment of the Wayne County
Municipal Court. This Court affirms.
I.
{¶2} On October 20, 2011, a complaint was filed in the Wayne County Municipal
Court charging Darrell Watts with one count of violating a protection order in violation of R.C.
2919.27(A)(1), a first degree misdemeanor. Darrell’s wife, Patricia, had obtained a protection
order against him on September 7, 2011. The matter proceeded to a bench trial and Darrell was
found guilty. Darrell was sentenced to a probation term of 12 months and ordered to pay a $250
fine plus court costs. The trial court’s sentencing entry was journalized on December 29, 2011.
{¶3} Darrell filed a timely notice of appeal and raises two assignments of error.
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II.
ASSIGNMENT OF ERROR I
DEFENDANT-APPELLANT’S CONVICTION FOR VIOLATING A
PROTECTION ORDER WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.
{¶4} In his first assignment of error, Darrell argues that his conviction for violating a
protection order was not supported by sufficient evidence. This Court disagrees.
{¶5} In support of his first assignment of error, Darrell argues that the State failed to
establish the mens rea element of recklessness in support of his conviction. Darrell emphasizes
that after his wife obtained a protection order and moved out of the apartment they shared, she
moved into an apartment that was only a block away. Darrell contends that he cannot be
convicted of acting recklessly when he merely continued to live at his home after the protection
order was issued.
{¶6} The law pertaining to a challenge to the sufficiency of the evidence is well settled:
“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.”
State v. Galloway, 9th Dist. No. 19752, 2001 WL 81257 (Jan. 31, 2001), quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶7} The test for sufficiency requires a determination of whether the State has met its
burden of production at trial. State v. Walker, 9th Dist. No. 20559, 2001 WL 1581570 (Dec. 12,
2001); see also State v. Thompkins, 78 Ohio St.3d 380, 390 (1997).
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{¶8} The elements of violating a protection order are set forth in R.C. 2919.27(A)(1)
which states, “No person shall recklessly violate the terms of * * * [a] protection order issued or
consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code.”
“Recklessly” is defined as, “when, with heedless indifference to the consequences, [a person]
perversely disregards a known risk that his conduct is likely to cause a certain result or is likely
to be of a certain nature. A person is reckless with respect to circumstances when, with heedless
indifference to the consequences, he perversely disregards a known risk that such circumstances
are likely to exist.” R.C. 2901.22(C). At the time of the incident in this case, Darrell was the
subject of a domestic violence civil protection order issued pursuant to R.C. 3113.31. The State
presented the protection order as an exhibit at trial.
{¶9} The case stems from two incidents that occurred on October 14 and October 18,
2011. At the time of the incidents, Darrell was separated from his wife, Patricia. Patricia
testified at trial that while she was still married to Darrell at the time of the incidents, she had
obtained a five-year protection order against him on September 7, 2011. After she obtained the
protection order, Patricia had moved in with her daughter, Debra Duncan, at an apartment
located at 529 N. Buckeye Street in Wooster, Ohio. The testimony at trial reveals that as Patricia
was getting ready to walk out the front door of her apartment to walk her dog on October 14,
2011, she observed Darrell riding his bicycle in front of her apartment. Patricia had lived with
Darrell at an apartment located at 453 N. Buckeye Street prior to the time she obtained the
protection order. Patricia testified that her current residence and her former residence were
located on the same block. Patricia testified that she moved in with her daughter because she
was afraid of Darrell and she did not have any other place to go. When Patricia observed Darrell
on his bicycle, he was riding in the direction going away from Patricia’s former apartment on the
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opposite side of the street. Patricia testified that she had made Darrell aware of the fact that she
was living in the apartment located at 529 N. Buckeye Street. Officer Corey Momchilov of the
Wooster Police Department testified that he responded to the call on October 14, 2011, and made
a report of the incident.
{¶10} On October 18, 2011, Patricia went to her old apartment to do some cleaning
because the landlord had complained that it was in poor condition. Patricia testified that the
apartment was “empty” at that time and that Darrell was no longer living there. Ms. Duncan,
who accompanied Patricia to the apartment, testified that Darrell was not living on Buckeye
Street as of the beginning of October. After Patricia and Ms. Duncan entered the apartment and
began to clean, another tenant told them to “get out” because Darrell was across the street. Ms.
Duncan testified that the tenant indicated Darrell was “sitting across the street on the steps.” Ms.
Duncan testified that Darrell was “[j]ust sitting there” and looking in the direction of the women
when they exited the apartment. As the women continued to walk, Darrell rode his bike in the
direction toward the apartment located at 529 N. Buckeye St. Ms. Duncan testified that Darrell
followed them on the other side of the street as they walked back to the apartment. Patricia
testified that as Darrell made his way down the street, he “kept looking back to see if anybody
was watching him.”
{¶11} Patricia returned to the apartment at 529 North Buckeye Street and called the
police. Officer Fatzinger, who responded to the call on October 18, 2011, testified that he
measured the distance from the sidewalk in front of 529 North Buckeye Street across the road to
the sidewalk where Darrell had been seen. Officer Fatzinger testified that the distance was
“approximately 55 feet.” Officer Fatzinger testified that Patricia had obtained a protection order
against Darrell on September 7, 2011, that would remain in effect until September 15, 2016.
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When presented with the protection order, Officer Fatzinger testified that it read, “[Darrell
Watts] shall stay away from [Patricia Watts] and all other persons named in this order and not be
present within 500 feet of any protected persons wherever those protected persons may be found
or any place where [Darrell] knows or should know the protective persons are likely to be even
with [Patricia’s] permission.” The protection order further read, “[Darrell Watts] shall not
initiate or have any contact with the protected persons named in this order or their residence,
business, place of employment, schools, daycare centers, or health care providers.”
{¶12} The aforementioned evidence, when construed in the light most favorable to the
State, was sufficient to convict Darrell Watts of violating a protection order. On two separate
occasions Darrell rode his bike past the apartment where Patricia was living. Patricia testified
that she had made Darrell aware of the fact that she was living at 529 N. Buckeye St. Officer
Fatzinger testified that the spot where Darrell was seen on the sidewalk across the street was
“approximately 55 feet” from the sidewalk in front of Patricia’s new apartment. During the
October 18 incident, Darrell waited outside the apartment located at 453 N. Buckeye St., and
when Patricia and Ms. Duncan exited, Darrell followed Patricia up the street as she made her
way back to her new apartment. Moreover, there was testimony at trial that Darrell was no
longer living at 453 N. Buckeye St. as of the beginning of October, and therefore would not have
had reason to be in that general area. This evidence, when construed in the light most favorable
to the State, was sufficient to establish that Darrell was reckless in violating the terms of the
protection order.
{¶13} The first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
DEFENDANT-APPELLANT’S CONVICTION FOR VIOLATING A
PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶14} In his second assignment of error, Watts argues that his conviction for violating a
protection order was against the manifest weight of the evidence. This Court disagrees.
{¶15} In support of his second assignment of error, Watts contends that the weight of
the evidence suggests that he was not reckless in violating the terms of the protection order.
Watts argues that the evidence is undisputed that he did not threaten or speak with Patricia
during the time frame in question, and the only reason he even saw Patricia is that she chose to
move only a couple of houses away despite the fact that she knew he was still living in their old
apartment at 453 N. Buckeye St. Watts contends that his conviction under these circumstances
was a manifest miscarriage of justice.
{¶16} A determination of whether a conviction is against the manifest weight of the
evidence does not permit this Court to view the evidence in the light most favorable to the State
to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist. No.
21654, 2004-Ohio-1422, ¶ 11. Rather,
an appellate court must review 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. Otten, 33 Ohio App.3d 339, 340 (9th
Dist.1986).
Weight of the evidence concerns the tendency of a greater amount of credible
evidence to support one side of the issue more than the other. Thompkins, 78
Ohio St.3d at 387. Further, when reversing a conviction on the basis that it was
against the manifest weight of the evidence, an appellate court sits as a “thirteenth
juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
Id.
State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, ¶ 5.
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{¶17} Darrell testified in his own defense at trial. Darrell testified that he lived at the
apartment located at 453 N. Buckeye St. in Wooster at the time of the alleged incidents in this
case and up until November 4, 2011. While he was served with the protection order at a different
address in Wooster, Darrell indicated that he used his brother’s mailing address “for legal
purposes only” to ensure that he would not miss any court dates. Darrell explained that he began
that practice because of prior legal matters separate from this case. Darrell asserted it is possible
Patricia saw him on N. Buckeye St. on the dates in question because he was living on that street
at the time. Darrell also noted that he used his bicycle as a mode of transportation because he did
not have a car. In regard to the incident where Patricia and Debra Duncan went to clean the
apartment at 453 N. Buckeye St., Darrell testified that the event actually occurred on October 16,
2011, which was a Sunday. Darrell testified that he was in a rush to watch football with his
brother that day when he pulled up on his bicycle and saw Patricia and Ms. Duncan exiting the
apartment with a vacuum cleaner. In order to avoid the women, Darrell waited until they left
before he entered his apartment. Darrell testified that he did not say anything to the women.
Darrell testified that his belongings were still in the apartment at that time as he had yet to move
out. Darrell further indicated that he was surprised to see the women in his apartment, and that
Patricia failed to tell his landlord that there was a protection order against him. When asked if he
was aware of where Patricia was staying, Darrell answered that he “assumed she went to stay
with Debbie Duncan.”
{¶18} A review of the entire record suggests that the weight of the evidence supports the
trial court’s conclusion that Darrell acted recklessly in violating the protection order. Darrell’s
testimony at trial sharply conflicted with the testimony of Patricia and Ms. Duncan on several
key issues, namely whether Darrell was still living at the apartment at 453 N. Buckeye St. at the
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time of the second incident. We note that the trier of fact was in the best position to evaluate the
credibility of witnesses, and this Court will not overturn the trial court’s verdict on a manifest
weight of the evidence challenge simply because the trial court chose to believe certain
witnesses’ testimony over the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M,
2005-Ohio-4082, ¶ 22. Because the protection order contained distance provisions, the mere fact
that Darrell did not speak to or threaten Patricia is not dispositive of whether he violated the
order. Patricia and Ms. Duncan testified that Darrell was not living at 453 N. Buckeye St. on the
day they went to clean the apartment. Patricia specifically testified that the apartment was
“empty” when they went to clean it. Significantly, in addition to riding his bicycle past the
apartment located at 529 N. Buckeye St. on the first occasion, there was testimony that on the
day the women went to clean the apartment located at 453 N. Buckeye St., Darrell followed them
as they attempted to return home after learning he was across the street. In light of the testimony
of Patricia, Ms. Duncan, and the police officers, we cannot conclude that this is the exceptional
case where the trial court clearly lost its way.
{¶19} The second assignment of error is overruled.
III.
{¶20} Watts’ assignments of error are overruled. The judgment of the Wayne County
Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
BRIAN L. SUMMERS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.