State v. Irvin

[Cite as State v. Irvin, 2012-Ohio-2279.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25887
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ANTHONY D. IRVIN COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 10 08 2280
DECISION AND JOURNAL ENTRY
Dated: May 23, 2012
MOORE, Judge.
{¶1} Appellant, Anthony Irvin, appeals the judgment of the Summit County Court of
Common Pleas. We affirm.
I.
{¶2} Kristin Colvin and Anthony Irvin have two children in common. In 2007, Colvin
obtained a civil protection order against Irvin, which prohibited him from coming within 100
yards of Colvin or their children. The civil protection order was effective for five years from the
date of issuance. However, on August 4, 2010, the children were visiting with Irvin and his
relatives at Irvin’s mother’s home. On that date, Colvin arrived at the paternal grandmother’s
home to pick up the children, and an altercation between Irvin and Colvin ensued.
{¶3} As a result of these events, the Summit County Grand Jury indicted Irvin on
charges of violating a protection order in violation of R.C. 2919.27, a fifth degree felony,
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domestic violence in violation of R.C. 2919.25(A), a fourth degree felony, and domestic violence
in violation of R.C. 2919.25(C), a second degree misdemeanor.
{¶4} On March 10, 2011, a bench trial commenced. The trial court found Irvin guilty
of the two felony charges and not guilty of the misdemeanor charge. The court sentenced Irvin
to 24 months of community control.
{¶5} Irvin timely filed a notice of appeal and raises one assignment of error for our
review.
II.
ASSIGNMENT OF ERROR
[IRVIN]’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶6} In his sole assignment of error, Irvin argues that his convictions were against the
manifest weight of the evidence. We do not agree.
{¶7} When a defendant asserts that his conviction is against the manifest weight of the
evidence,
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).
{¶8} Here, Irvin was convicted of violating a protection order in violation of R.C.
2919.27 and domestic violence in violation of R.C. 2919.25(A). R.C. 2919.27 provides that no
person shall recklessly violate the terms of a protection order, and violation of this section
constitutes a fifth degree felony where the offender has previously violated this section. R.C.
2919.25(A) provides that “[n]o person shall knowingly cause or attempt to cause physical harm
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to a family or household member.” A “family or household member” includes “[t]he natural
parent of any child of whom the offender is the other natural parent or is the putative other
natural parent.” R.C. 2919.25(F)(1)(b). Where the offender “previously has pleaded guilty to or
been convicted of domestic violence,” a violation of R.C. 2919.25(A) is a felony of the fourth
degree. R.C. 2919.25(D)(3).
{¶9} At trial, the parties stipulated to the accuracy of the State’s exhibits, which
included the trial court docket of a 2006 conviction for domestic violence, a copy of the civil
protection order that Colvin obtained against Irvin in 2007, and the trial court docket of a 2007
conviction for violating the terms of this protection order. Irvin makes no argument as to the
weight of the evidence in regard to the civil protection order or to the two prior convictions, and,
accordingly, we will confine our discussion to the evidence of the remaining elements of the
above charges.
{¶10} At trial, Colvin, two witnesses, and the responding officer testified on behalf of
the State. Colvin testified that she had agreed to allow Irvin’s brother to visit with the children
from August 1, 2011 until August 4, 2011. On August 4, 2011, Colvin received a telephone call
from Irvin’s brother requesting that she pick up the children from Irvin’s mother’s house. She
and three of her friends went to the paternal grandmother’s house, and, when they arrived, Irvin
emerged from the residence followed by the children. As she was packing the children’s
belongings into the trunk of her friend’s car, Irvin began to walk toward the street, but then
turned and punched Colvin in her face. Irvin then continued to strike her, and she fell and lost
consciousness for a moment. Her friends then attempted to intervene, but Irvin “started reaching
like he had a gun and said, ‘Don’t be dumb,’” at which point two of her friends returned to the
vehicle. However, one of her friends was able to successfully intervene. Colvin left the
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residence and drove her children and friends to her home, and then left to go to her mother’s
home to contact the police. As a result of the attack, Colvin was unable to eat for a few days,
suffered from a headache, suffered pain in her mouth, and sustained injuries to her elbow.
{¶11} On cross-examination, Colvin acknowledged inconsistencies with her prior
statement, where she had reported to police officers that her son emerged from the home prior to
Irvin and that Irvin’s mother had called her to pick up the children. However, Colvin posited
that she might have incorrectly written these statements because she was upset over the incident.
Colvin also confirmed that there was a delay between the incident and her report to the police.
However, Colvin explained that her landlord had performed a background check on her which
revealed her past legal issues with Irvin, and she was concerned about having the police arrive at
her residence. Therefore, the delay between the incident and the report was due to her driving
the children to her home before driving to her mother’s home to telephone the police. In
addition, Colvin acknowledged that she had told the police that she would seek medical
assistance at the hospital, but she ultimately did not go to the hospital. However, Colvin
explained that she wanted to go home to be with her children because they had been gone for
several days and had witnessed the altercation between their parents. Colvin further explained
that she did not go to the hospital because she was scheduled to work early the next morning;
however, her injuries prevented her from attending work as scheduled.
{¶12} Colvin’s friends Rashae Greer and Assia Brown testified that they rode with
Colvin to pick up the children on the date at issue. Brown testified that she witnessed Irvin and
Colvin arguing when Colvin was packing the children’s belongings into the trunk, and although
she was unable to see Irvin’s initial punch to Colvin’s face, she was able to see other physical
movements of the two that were consistent with Irvin striking Colvin in the face. Greer testified
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that, although she did not witness Irvin strike Colvin, she heard Colvin yell that he had struck
her. Greer and Brown testified that they then exited the vehicle to intervene, but Irvin continued
to attack Colvin. Brown testified that Irvin knocked Colvin to the ground, and while Brown was
assisting her to her feet, she heard Irvin say words to the effect of, “Don’t be dumb,” or “[D]on’t
be stupid,” which she interpreted as implying that Irvin had a gun. Brown was able to assist
Colvin into the vehicle, and, Brown and Greer accompanied Colvin to her home and stayed with
the children while Colvin went to her mother’s home.
{¶13} Officer Jeffrey Kubasek of the City of Akron Police Department testified that he
responded to Colvin’s call on the date at issue. When he arrived at her mother’s house, the
officer noticed swelling on the right side of Colvin’s face and a scratch on her elbow. The
officer told Colvin that she should seek medical treatment, and Colvin responded that she would
go to the hospital.
{¶14} As part of the defense, Irvin testified that Colvin assaulted him on the date at
issue, but he did not retaliate against her. Instead, he left the residence after providing Colvin
with the children’s belongings.
{¶15} In his merit brief, Irvin argues that Colvin’s testimony was inconsistent with, and
contained facts absent from the initial police report, and argues that Colvin lacked credibility.
Irvin further argues that Colvin’s decision to wait one-and-a-half hours before calling the police
and her failure to seek medical treatment after the incident indicate that her testimony is
unreliable, and the testimony of Greer and Brown was unreliable due to their friendship with
Colvin. However, this Court is mindful that “[e]valuating the evidence and assessing credibility
are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994),
citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple
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Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist.1987). This is because the trier of fact “is
best able to view witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” State v. Cook, 9th
Dist. No. 21185, 2003-Ohio-727, ¶ 30 quoting Giurbino v. Giurbino, 89 Ohio App.3d 646, 659
(8th Dist.1993).
{¶16} After reviewing the entire record, weighing the inferences and examining the
credibility of witnesses, we cannot say that the trial court clearly lost its way and created a
manifest miscarriage of justice in finding Irvin guilty of violating a protection order and
domestic violence. Accordingly, Irvin’s sole assignment of error is overruled, and the judgment
of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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.
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Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
KRISTEN KOWALSKI, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.