State v. Polasky

[Cite as State v. Polasky, 2012-Ohio-3293.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2012-CA-9
AMANDA POLASKY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge
Municipal Court, Case No. 11CRB01145
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES SKELTON RONALD COUCH
309 Main Street 121 West Eighth Street
Coshocton, OH 43812 Cambridge, OH 43725
[Cite as State v. Polasky, 2012-Ohio-3293.]
Gwin, P.J.
{¶1} Defendant Amanda Polasky appeals a judgment of the Cambridge
Municipal Court of Guernsey County, Ohio, which convicted and sentenced her for
menacing, a fourth degree misdemeanor, after a trial to the bench. Appellant assigns a
single error to the trial court:
{¶2} “I. THE CONVICTION WAS AGAINST THE SUFFICIENCY AND
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶3} In State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2d 541 (1997), the
Ohio Supreme Court found the concepts of manifest weight and legal sufficiency are
both quantitatively and qualitatively different. Id., syllabus, paragraph 2.
{¶4} The Thompkins court defined sufficiency of the evidence as a term of art
referring to the legal standard courts must apply to determine whether the case may go
to the jury, or whether the evidence is legally sufficient to support the jury’s verdict. The
Supreme Court explained sufficiency is a test of adequacy, and is a question of law.
{¶5} On the other hand, manifest weight of the evidence concerns the greater
amount of credible evidence offered at trial to support one side of the issue rather than
the other. The Supreme Court cautioned that weight is not a question of sheer
mathematics but rather, how effective the evidence is in inducing belief in the mind of
the trier of fact.
{¶6} At trial, the State presented the testimony of Christopher McCall, Leonard
Polasky, and Liz McCune. At the time of the incident appellant and Polasky were in the
process of divorce. Christopher McCall testified he attended a Labor Day picnic at the
home of Leonard Polasky. He testified appellant and some other persons arrived in a
Guernsey County, Case No. 2012-CA-9 3
car and were screaming. He testified specifically Amanda shouted “you are going to jail
mother fucker.” McCall testified he was unsure to whom this statement was directed.
{¶7} Leonard Polasky testified he had told the appellant he didn’t want her to
come to his home and their divorce orders specified they were to meet at the police
station to exchange the children for visitation. Polasky testified appellant did not come
onto his property, but was in a car on the street in front of his home. She, her mother,
and other persons were in the car yelling and screaming profanities and racial slurs. He
testified the people in the car were trying to catch him drinking alcohol, so they could get
him “violated” and put in prison. He testified appellant also shouted something like “I
am going to get you next too” which Polasky believed was directed at McCune, his
girlfriend, because she was standing next to him. Polasky testified their pending divorce
was very ugly and there was a big custody battle.
{¶8} Polasky testified there was no question in his mind that appellant was the
person who had uttered the threat to McCune. He testified he was familiar with
appellant’s voice, as well as her mother and father’s voices, and could tell them apart
even when they were shouting. Polasky also testified appellant had previously been
arrested on an assault charge stemming from an incident at McCune’s house. The
charge was subsequently reduced to disorderly conduct.
{¶9} McCune testified appellant does not like her, and on the day in question,
shouted at her “you are going to get your ass beaten next, bitch”. She testified it was a
woman’s voice and the only women in the vehicle were appellant and her mother. She
testified she believed it was a threat to cause her physical harm and believed it was
appellant who had made the threat.
Guernsey County, Case No. 2012-CA-9 4
{¶10} Appellant presented the testimony of her mother, who indicated she had
never witnessed her daughter threaten anyone. She also testified during the incident
she was operating a video camera in an attempt to show Polasky drinking alcohol.
{¶11} Appellant testified she was not the person who had threatened McCune.
Appellant denied even seeing McCune on the day in question. She testified her father
was the person who threatened to put Polasky in jail.
{¶12} Both appellant and her mother testified the video was an accurate
representation of what occurred. Appellant then played the video for the court. On
closing, the State argued appellant’s voice could be heard on the video shouting
threats. Appellant responded the various witnesses’ testimony contained serious
disagreements about what had occurred, and it would have been difficult for anyone to
distinguish who was shouting what. The court made no finding regarding the video.
{¶13} We find the evidence was legally sufficient to support the trial court’s
verdict as a matter of law, and in addition, we find the court’s decision is supported by
the weight of the evidence.
{¶14} The assignment of error is overruled.
Guernsey County, Case No. 2012-CA-9 5
{¶15} For the foregoing reasons, the judgment of the Cambridge Municipal
Court, Guernsey County, Ohio, is affirmed.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0706
[Cite as State v. Polasky, 2012-Ohio-3293.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
AMANDA POLASKY :
:
:
Defendant-Appellant : CASE NO. 2012-CA-9
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Cambridge Municipal Court, Guernsey County, Ohio, is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS