State v. Vanvalkenburg

[Cite as State v. Vanvalkenburg, 2011-Ohio-3804.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 10-CA-116
:
:
ROCKY VANVALKENBURG, II : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
10 CR 300
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 25, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL L. FROST HEATHER L. KECK
Assistant Prosecuting Attorney Bowen & Keck Law, LLC
Licking County Prosecutor’s Office 338 South High Street
20 S. Second Street, 4th Floor Columbus, Ohio 43215
Newark, Ohio 43055
[Cite as State v. Vanvalkenburg, 2011-Ohio-3804.]
Edwards, J.
{¶1} Defendant-appellant, Rocky VanValkenburg, II, appeals his conviction and
sentence from the Licking County Court of Common Pleas on one count of domestic
violence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On June 11, 2010, the Licking County Grand Jury indicted appellant on
two counts of domestic violence in violation of R.C. 2919.25(A), felonies of the fourth
degree. The victim with respect to Count One was Savannah VanValkenburg,
appellant’s sister, and the victim with respect to Count Two was Amanda Ellis,
appellant’s cousin. At his arraignment on June 22, 2010, appellant entered a plea of not
guilty to the charges contained in the indictment.
{¶3} Pursuant to an Entry filed on August 9, 2010, Count Two was amended to
assault in violation of R.C. 2903.12(A).
{¶4} Subsequently, a jury trial commenced on August 23, 2010. The following
testimony was adduced at trial.
{¶5} Amanda Ellis is appellant’s cousin. On June 4, 2010, Ellis went to pick up
Savannah. Ellis testified that when she arrived at appellant’s home, appellant and
Savannah were having an argument about Savannah moving out. According to Ellis,
appellant had broken a fan of Savannah’s using a baseball bat.
{¶6} Ellis was questioned about a 911 call that she made to police that day.
The following is an excerpt from her trial testimony:
{¶7} “Q. On the 9-1-1 call you made reference to getting up into her face or
he’s hitting her. Did you see the defendant striking Savannah?
Licking County App. Case No. 10-CA-116 3
{¶8} “A. They both were in each other’s faces.
{¶9} “Q. So do you recall him striking Savannah?
{¶10} “A. I remember them striking each other, yes.” Trial Transcript at 89.
{¶11} Ellis testified that at some point, a neighbor came over and pulled
appellant off of Savannah. Ellis testified that Savannah was bleeding that day from the
mouth and nose.
{¶12} On cross-examination, Ellis testified that appellant and Savannah were
hitting each other and that she did not have an opportunity to see who hit who first.
{¶13} At trial, Savannah VanValkenburg testified that appellant got upset about
her moving out and took her baseball bat and used it to break her fan. She testified that
they then “struggled with the bat and we got away from each other and then we just
attacked each other.” Trial Transcript at 119. Savannah was unable to recall whether
appellant hit her in the face, but testified that her nose was bleeding. Savannah testified
that there was blood on her jeans and that she got hit in the mouth when she and
appellant were fighting. She was unable to recall whether appellant struck her in the
mouth and testified that appellant was drinking that day.
{¶14} Savannah testified that at some point, a neighbor came over and grabbed
appellant.
{¶15} On cross-examination, Savannah testified that at the time she gave her
original statement to the police, she was angry. She testified that her trial testimony was
more accurate because it was not affected by anger. She testified that she did not
remember who went after the other first, but that she and appellant both went after each
other. Savannah testified that she hit appellant with a fist or open hand and that she
Licking County App. Case No. 10-CA-116 4
pushed him and shoved him. Savannah also testified that she was prone to nosebleeds
when her adrenaline was up and it was hot outside and that, on the day in question, it
was hot. She also testified that she was as physically aggressive as appellant in the
fight.
{¶16} The next witness to testify was Douglas Bowlby, appellant’s neighbor.
Bowlby testified that, on June 4, 2010, he was inside with his wife when he heard a
commotion outside. When Bowlby went outside, he saw appellant and Savannah
involved in an altercation and saw appellant hitting a fan with a baseball bat. Bowlby
testified that, at some point, appellant and Savannah got into a physical altercation and
were throwing punches. Bowlby was unable to say how the altercation started. Bowlby
testified that he intervened and moved appellant down to the sidewalk while Savannah
went up on the front porch. According to Bowlby, appellant then broke away and ran up
onto the porch and struck Savannah in the face with a closed fist. Savannah then
tackled appellant over the porch rail.
{¶17} On cross-examination, Bowlby testified that when appellant ran up onto
the porch, appellant said something about getting a cell phone and calling the police.
He testified that before appellant hit her in the face, Savannah was “flailing around”
while waiting for appellant on the porch. Trial Transcript at 150. Bowlby was unable to
say whether, before appellant hit her, Savannah attempted to hit appellant.
{¶18} Officer Brandy Huffman of the Newark Police Department testified that
Savannah was upset and crying and had blood on her pants and was holding a bloody
towel up to her nose when the police arrived on the scene. She testified that appellant
Licking County App. Case No. 10-CA-116 5
had some injuries to his knuckles, but did not have a black eye, bloody lip or bloody
nose. Appellant appeared to be intoxicated.
{¶19} At the conclusion of the evidence and the end of deliberations, the jury, on
August 23, 2010, found appellant guilty of one count of domestic violence and not guilty
of assault. The jury further found that appellant previously had been convicted of
domestic violence. Pursuant to a Judgment Entry filed on October 13, 2010, appellant
was placed on community control for a period of three (3) years.
{¶20} Appellant now raises the following assignment of error on appeal:
{¶21} “I. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE WHERE THERE WAS CONFLICTING AND CONTRADICTORY
TESTIMONY REGARDING WHO CAUSED THE VICTIM’S INJURY.”
I
{¶22} Appellant, in his sole assignment of error, argues that his conviction for
domestic violence was against the manifest weight of the evidence. We disagree.
{¶23} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, ‘weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin (1983), 20 Ohio App.3d 172,
175, 485 N.E.2d 717.
Licking County App. Case No. 10-CA-116 6
{¶24} Appellant was convicted of domestic violence in violation of R.C.
2919.25(A). Such section states as follows: (A) No person shall knowingly cause or
attempt to cause physical harm to a family or household member. Appellant specifically
contends that, reviewing the record as a whole, there was no evidence establishing
beyond a reasonable doubt that appellant caused physical harm to Savannah
VanValkenberg. Appellant notes that Savannah, when asked whether appellant struck
her in the mouth, testified at one point that she did not recall. Appellant also notes that
Savannah was unable to recall whether appellant had punched her and testified that
“we just attacked each other.” Trial Transcript at 130.
{¶25} However, testimony was adduced at trial that appellant was angry with
Savannah because she was moving and had used a baseball bat to break her fan.
Amanda Ellis testified that she recalled appellant striking Savannah and that a neighbor
came over and pulled appellant off of Savannah. In addition, Douglas Bowlby, who is
not related to either appellant or Savannah, testified that, after he separated the two,
appellant ran up onto the porch and struck Savannah in the face. Officer Huffman
testified that Savannah was upset and crying and had blood on her pants and was
holding a bloody towel up to her nose when the police arrived. Based on the foregoing
we find that the jury did not clearly lose its way and create such a manifest miscarriage
of justice that the conviction for domestic violence must be reversed and a new trial
ordered.
Licking County App. Case No. 10-CA-116 7
{¶26} Appellant’s sole assignment of error is, therefore, overruled.
{¶27} Accordingly, the judgment of the Licking County Court of Common Pleas
is affirmed.
By: Edwards, J.
Gwin, P.J. and
Hoffman, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d0523
[Cite as State v. Vanvalkenburg, 2011-Ohio-3804.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ROCKY VANVALKENBURG, II :
:
Defendant-Appellant : CASE NO. 10-CA-116
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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JUDGES