State v. Gregory ( 2023 )

[Cite as State v. Gregory, 2023-Ohio-1700.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-10-070
: OPINION
- vs - 5/22/2023
:
CURTIS L. GREGORY, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case No. 2021 CRB 0005
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton , Assistant
Prosecuting Attorney, for appellee.
W. Stephen Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant
Public Defender, for appellant.
M. POWELL, J.
{¶ 1} Appellant, Curtis L. Gregory, appeals from his conviction of assault in the
Clermont County Municipal Court. For the reasons outlined below, we affirm.
Clermont CA2022-10-070
Facts and Procedure
{¶ 2} In December 2020, Leah Manis lived with her then-boyfriend at an apartment
in Union Township. Manis has health issues which limit her mobility, so when her boyfriend
was incarcerated that month, appellant moved in with Manis to assist her.
{¶ 3} On January 1, 2021—approximately three weeks after appellant had moved
in—Manis was in her bedroom speaking via video call with her friend, Christine McFerrin.
Appellant entered the room and asked if he could use her phone. She said he could, but
would have to wait until she was finished with it. She testified that appellant "turned around
and walked out" of the bedroom, "then turned back around and came back" into the room,
"grabbed" her phone and punched her. Appellant then took the phone to the living room.
{¶ 4} Bracing herself against the wall with great difficulty, Manis followed appellant
and tried to recover her phone. Appellant then "grabbed" her by the throat and "threw" her
on the loveseat, where he "started punching" her and "holding" her neck, while also kicking
her legs. Manis testified that she could not breathe as she struggled against appellant, who
was holding her down. Appellant punched her in the face about six times while shouting
obscenities at her.
{¶ 5} As the attack was ongoing, McFerrin, who was in Mount Vernon, Kentucky,
remained on the video call and heard the commotion. Using another phone, she called the
police and reported the attack on Manis. When appellant heard that police were being
dispatched, he said, "I hope you die, you fucking bitch," before leaving. Union Township
police officers arrived soon after appellant left. They took Manis's statement and a series
of photographs of Manis's injuries. A warrant was issued for appellant's arrest, and
appellant was arrested on September 13, 2022, over a year and a half later.
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{¶ 6} A bench trial was held on October 4, 2022. Manis and responding officer,
Derek Disbennett, testified on behalf of the state. Officer Disbennett testified that the
department had received a call from "a third party caller" who "advised she was on a video
or a FaceTime chat" with Manis and believed that Manis was being assaulted. Officer
Disbennett and another officer responded to the call, finding Manis crying, having "redness
around her eyes and on the side of her face," as well as "some red marks on her neck."
She then gave a statement of the incident.
{¶ 7} There were some differences in Manis's account and Officer Disbennett's
recollection of what Manis told him at the scene. At trial, Manis testified that appellant's
punches broke her glasses and "knocked my teeth out." Officer Disbennett testified that
Manis "did not make any claims to me about her teeth being knocked out," and in fact, told
officers the entire incident had occurred in her bedroom rather than the living room.
{¶ 8} After closing arguments, the trial court made its findings from the bench. In
addressing inconsistencies between Manis's testimony and Officer Disbennett's account,
the trial court noted that "quite some time ha[d] passed" between the incident and the trial,
and that "with that, memories fade." It continued, stating that "on the main points [Manis]
remained consistent and her testimony was believable and credible to the court."
{¶ 9} The trial court found appellant guilty of assault, in violation of R.C. 2903.13,
and sentenced him to 180 days in jail, the maximum sentence for the offense. Appellant
timely appealed, raising a single assignment of error:
{¶ 10} THE TRIAL COURT ERRED IN ENTERING A VERDICT OF GUILTY
BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶ 11} In his sole assignment of error, appellant argues that his conviction for assault
was against the manifest weight of the evidence. We disagree.
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Clermont CA2022-10-070
Law and Analysis
{¶ 12} Preliminarily, we note that although appellant has completed his sentence,
this appeal is not thereby rendered moot. See Cleveland Hts. v. Lewis, 129 Ohio St.3d 389,
2011-Ohio-2673, ¶ 23; State v. Glisson, 12th Dist. Clermont No. CA2020-11-064, 2021-
Ohio-1985, ¶ 12.
{¶ 13} A manifest weight of the evidence challenge examines the inclination of the
greater amount of credible evidence, at trial, to support one side over the other. State v.
Ruggles, 12th Dist. Warren Nos. CA2019-05-038, CA2019-05-044, CA2019-05-045, and
CA2019-05-046, 2020-Ohio-2886, ¶ 82. To determine whether a conviction is against the
manifest weight of the evidence, the reviewing court must look at the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether in resolving the 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. Miller, 12th Dist. Preble No. CA2019-11-010,
2021-Ohio-162, ¶ 13.
{¶ 14} While a manifest weight of the evidence review requires this court to evaluate
credibility, the determination of witness credibility is primarily for the trier of fact to decide.
State v. Lewis, 12th Dist. Butler No. CA2019-07-128, 2020-Ohio-3762, ¶ 19. When
considering whether a judgment is against the manifest weight of the evidence in a bench
trial, an appellate court will not reverse a conviction where the trial court could reasonably
conclude from substantial evidence that the state has proven the offense beyond a
reasonable doubt. State v. Lowry, 12th Dist. Warren Nos. CA2019-07-070 and CA2019-
07-071, 2020-Ohio-1554, ¶ 15. An appellate court will overturn a conviction due to the
manifest weight of the evidence only in extraordinary circumstances when the evidence
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presented at trial weighs heavily in favor of acquittal. State v. Ostermeyer, 12th Dist. Preble
No. CA2021-01-002, 2021-Ohio-3781, ¶ 35.
{¶ 15} Appellant challenges the trial court's decision on the basis of witness
credibility. We therefore begin our analysis by noting that the decision whether to credit the
testimony of particular witnesses, and to what extent, is within the peculiar competence of
the factfinder, who has seen and heard the witness. State v. Altman, 12th Dist. Clermont
No. CA2021-12-071, 2022-Ohio-2380, ¶ 15. It is well established that determinations
regarding witness credibility, conflicting testimony, and the weight to be given such evidence
are primarily for the trier of fact. State v. Bedsole, 12th Dist. Warren Nos. CA2021-09-089
and CA2021-09-090, 2022-Ohio-3693, ¶ 35. The trial court, as the trier of fact, is free to
believe all, part, or none of the testimony of any witness who appears before it. State v.
Cephas, 12th Dist. Butler No. CA2021-05-051, 2021-Ohio-4356, ¶ 13.
{¶ 16} Appellant argues that inconsistencies in the state's witnesses' testimony
regarding the particular details of the incident undermines Manis's credibility. However, the
trial court takes note of any inconsistencies in the witness' testimony and resolves them
accordingly, believing all, part, or none of each witness's testimony. State v. Schils, 12th
Dist. Clermont No. CA2019-08-067, 2020-Ohio-2883, ¶ 18. Inconsistencies in the evidence
alone do not mean that a decision is against the manifest weight of the evidence. State v.
Deck, 12th Dist. Warren No. CA2020-10-066, 2021-Ohio-3145, ¶ 21. Consequently, the
trial court did not err in choosing to believe Manis's testimony in spite of its inconsistency
with Officer Disbennett's testimony.
{¶ 17} In a bench trial, the trial court acts as the factfinder and determines both the
credibility of the witnesses and the weight of the evidence. Bedsole at ¶ 35. Here, the trial
court determined that "on the main points" of the incident, Manis had "remained consistent
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and her testimony was believable and credible to the court." This, despite the trial court's
observation of the considerable time which had passed between the incident and trial.
Conclusion
{¶ 18} Convictions are not against the manifest weight of the evidence simply
because the trier of facts believed the state's witnesses over the defense. State v. Ward,
12th Dist. Preble No. CA2020-06-009, 2021-Ohio-4116, ¶ 34. In making its decision to
believe the state's witnesses, the trial court did not lose its way or create a manifest
miscarriage of justice. After reviewing the record, weighing inferences, and examining the
credibility of the witnesses, we find that appellant's conviction for assault is not against the
manifest weight of the evidence. As such, appellant's assignment of error is without merit
and therefore overruled.
{¶ 19} Judgment affirmed.
S. POWELL, P.J., and BYRNE, J., concur.
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