State v. Disney

[Cite as State v. Disney, 2016-Ohio-3545.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-09-171
: OPINION
- vs - 6/20/2016
:
TERRY DISNEY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
Case No. 14 CRB 04402
Neal Schuett, Hamilton City Prosecutor, 345 High Street, Hamilton, Ohio 45011, for plaintiff-
appellee
Christopher p. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Terry Disney, appeals a decision of the Hamilton
Municipal Court convicting her of domestic violence. For the reasons outlined below, we
affirm.
{¶ 2} The charge against appellant stemmed from allegations that she engaged in an
altercation with her adult daughter, A.S. On November 27, 2014, the family gathered at the
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Disney house to celebrate Thanksgiving. At some point, the family assembled in the living
room to discuss a sensitive matter. When the dialogue turned into a heated argument, A.S.
decided to take her children and leave the house.
{¶ 3} The facts concerning what happened next are in dispute. According to
appellant, A.S. exited the room and hit appellant's chair with enough force to turn the chair
nearly around. Appellant rose and approached A.S., pointing a finger at her daughter and
saying she would not tolerate A.S. verbally abusing her or her husband in their house.
Appellant did not physically engage A.S. in any way, nor even attempt to. Rather, her taller
and much larger daughter pushed her to the ground. Appellant's son and son-in-law helped
her up and attempted to calm her. Thereafter, appellant's husband summoned the police to
the residence.
{¶ 4} A.S. offers a different version of events. According to A.S., she accidentally
bumped appellant's chair when she exited the living room. In response, appellant screamed
"I brought you into this world, and I can take you out" and aggressively advanced towards her
with a raised and clenched fist. A.S., her back against a pantry door, pushed appellant away
in an effort to defend herself. Appellant fell to the ground. After returning to a standing
position, appellant had to be restrained by her son and son-in-law. A.S. left the house with
her children and waited in her car for the police to arrive.
{¶ 5} A few days after the incident, appellant was charged with one count of domestic
violence in violation of R.C. 2919.25(A), a first-degree misdemeanor. Following a bench trial,
she was found guilty and sentenced. This appeal followed.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT MS.
DISNEY OF DOMESTIC VIOLENCE.
{¶ 8} Assignment of Error No. 2:
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{¶ 9} MS. DISNEY'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 10} Appellant contends that the evidence was insufficient to support her conviction
for domestic violence, and that her conviction was against the manifest weight of the
evidence. Because her two assignments of error are amenable to simultaneous disposition,
we shall address them together.
{¶ 11} The concepts of sufficiency of the evidence and weight of the evidence are
legally distinct. State v. Wright, 12th Dist. Butler No. CA2012-08-152, 2014-Ohio-985, ¶ 10.
Nonetheless, as this court has repeatedly observed, a finding that a conviction is supported
by the manifest weight of the evidence is also dispositive of the issue of sufficiency. State v.
Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. "Because sufficiency is
required to take a case to the jury, a finding that a conviction is supported by the weight of
the evidence must necessarily include a finding of sufficiency." State v. Hart, 12th Dist.
Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.
{¶ 12} A manifest weight challenge scrutinizes the proclivity of the greater amount of
credible evidence, offered at a trial, to support one side of the issue over another. State v.
Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14. In assessing whether
a conviction is against the manifest weight of the evidence, a reviewing court examines the
entire record, weighs the evidence and all reasonable inferences, considers the credibility of
the witnesses, and determines 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. Morgan, 12th Dist. Butler Nos. CA2013-
08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶ 13} Although appellate review contemplates the credibility of witnesses and weight
afforded to the evidence, resolution of issues arising therefrom typically falls within the
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purview of the trier of fact. State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-
Ohio-5226, ¶ 81. Thus, an appellate court will overturn a conviction on manifest weight
grounds only in extraordinary circumstances where the evidence presented at trial weighs
heavily in favor of acquittal. Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-
Ohio-52.
{¶ 14} As stated, appellant was convicted of domestic violence in violation of R.C.
2919.25. Subsection (A) of the statute prohibits any person from knowingly causing or
attempting to cause physical harm to a family or household member. A person acts
"knowingly" when he or she is aware that their conduct will probably cause a certain result or
will probably be of a certain nature. R.C. 2901.22(B). Pursuant to R.C. 2901.01(A)(3),
"physical harm" encompasses any injury, regardless of gravity or duration.
{¶ 15} Obviously, when the victim sustains visible injuries, the causation element is
easier to prove. But what type of evidence is required to prove that the perpetrator attempted
to cause physical harm to the victim? Under R.C. 2923.02(A), Ohio's attempt statute, a
person can be convicted of attempting to commit an offense when they engage in conduct
toward the commission of the offense. The Ohio Supreme Court construed the attempt
statute in a seminal opinion issued several decades ago. State v. Woods, 48 Ohio St.2d 127(1976), paragraph one of the syllabus, judgment vacated on other grounds, 438 U.S. 910, 98
S.Ct. 3133 (1978).
{¶ 16} The Woods court defined a "criminal attempt" as "an act or omission
constituting a substantial step in a course of conduct planned to culminate in [the actor's]
commission of the crime." Woods at paragraph one of the syllabus. A "substantial step" is
denoted by conduct "strongly corroborative of the actor's criminal purpose." Id. Though
overruled on other grounds, this portion of the Woods opinion retains validity and was
recently cited by the current bench of the Ohio Supreme Court. See State v. Dean, Slip
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Opinion No. 2015-Ohio-4347, __ Ohio St.3d __, 2015-Ohio-4347, ¶ 175.
{¶ 17} This court has similarly ruled that an attempt entails conduct perpetrated toward
the commission of an offense. State v. Curtis, 12th Dist. Butler No. CA2008-01-008, 2009-
Ohio-192, ¶ 16. While examining R.C. 2923.02(A), we noted:
A criminal attempt is complete when a defendant's conduct or
acts constitute a substantial step in a sequence of events
designed to result in the perpetration of a crime. A substantial
step involves conduct which is "strongly corroborative of the
actor's criminal purpose."
(Citations omitted). Curtis at ¶ 16, quoting Woods at paragraph one of the syllabus. This
explanation can be employed to clarify the concept of "attempting to cause physical harm"
within the meaning of the domestic violence statute. That is, a perpetrator violates R.C.
2919.25(A) when they take a substantial step toward causing physical harm to a family or
household member.
{¶ 18} In the present matter, appellant protests that the trial court incorrectly weighed
the evidence in reaching its verdict. According to appellant, the record lacks credible
evidence establishing that she attempted to cause physical harm to A.S. Appellant
emphasizes that both women were yelling and cursing at one another. She admits to angrily
walking toward A.S. with a pointed finger, but nothing more. According to appellant, the trial
court wrongly found this single act sufficient to constitute a substantial step toward causing
physical harm to A.S. in contravention of the credible evidence she offered at trial.
{¶ 19} For example, appellant testified that she was physically incapable of making a
fist due to a thumb injury. Her husband corroborated her assertion that she pointed a finger
at A.S. rather than making a fist. In addition, appellant emphasizes that her daughter was
larger in both stature and weight. Finally, appellant downplays the "I can take you out"
comment, insisting it was a common statement that was not indicative of intent to cause
harm. Multiple witnesses corroborated A.S.'s assertion that appellant made the comment.
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However, appellant's daughter-in-law C.H. testified that she believed the statement was
delivered after appellant had already fallen to the ground.
{¶ 20} If believed, the above assertions could feasibly refute the charge against
appellant. But the trial court chose to believe A.S.'s version of events. As stated, A.S.
maintains that appellant rose from the chair and angrily charged her, verbalizing what A.S.
construed as a threat against her life in the "I can take you out" statement. At trial, appellant
admitted that she did not recall making the statement, but conceded that she may have
uttered the sentence as she had said it before. The victim's husband, T.S., adamantly
insisted that appellant made this threat while charging A.S.
{¶ 21} Both T.S. and C.H. testified that appellant's movements were aggressive and
that appellant indeed moved toward A.S. with clenched fists. In fact, C.H. stated that
appellant had one fist raised up near her head as if she were going to strike her daughter.
According to C.H., A.S. told her mother "you're not going to hit me anymore." A.S. maintains
that she pushed appellant away in order to defend herself from the onslaught. Contrary to
appellant's depiction of the aftermath, A.S. testified that her husband and brother had to
restrain appellant to keep her from attacking her daughter again after falling to the ground.
{¶ 22} Clearly, there were some key facts in dispute in the present matter. As often
occurs in domestic violence cases, the disposition of the case ultimately hinged upon the
credibility of the witnesses. See, e.g., State v. Myers, 12th Dist. Butler No. CA2013-06-104,
2014-Ohio-3658, ¶ 12-13; State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-
Ohio-6535, ¶ 32. As stated, the finder of fact is in the best position to assess credibility and
to resolve questions of fact. Barnes, 2011-Ohio-5226 at ¶ 81.
{¶ 23} To reverse a conviction as being against the manifest weight of the evidence,
we must disagree with the factfinder's resolution of conflicting evidence. State v. Lampe,
Hamilton App. No. C-020708, 2003-Ohio-3059, ¶ 8. Due to the factfinder's ability to observe
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the demeanor of witnesses and adjudge credibility, we tend to refrain from disturbing its
finding regarding which version of events was more credible. State v. Bonner, 12th Dist.
Butler No. CA2012-09-195, 2013-Ohio-3670, ¶ 13. Hence our resolve to grant a new trial
only in exceptional cases where the evidence presented at trial weighs heavily in favor of
acquittal. Barnes at ¶ 81.
{¶ 24} In the case sub judice, the trial court chose to believe the version of events
propounded by A.S. After reviewing the record, we cannot say that this determination was
erroneous. "It is well-established that when conflicting evidence is presented at trial, a
conviction is not against the manifest weight of the evidence simply because the trier of fact
believed the prosecution testimony." State v. Lunsford, 12th Dist. Brown No. CA2010-10-
021, 2011-Ohio-6529, ¶ 17. The weight of the evidence supports that appellant attempted to
cause physical harm to her daughter and was aware her conduct would likely cause a certain
result. It is true that appellant's actions did not culminate in the perpetration of physical harm
against A.S. Nonetheless, the record contains credible evidence establishing that appellant
engaged in conduct that constituted a substantial step toward committing domestic violence
within the meaning of R.C. 2919.25(A).
{¶ 25} Appellant's insistence that her statement about "taking A.S. out" was
nonthreatening defies reason. If conveyed in a lighthearted tone and perhaps accompanied
by a smile or a laugh, such a statement could be interpreted as a harmless joke. When
made whilst aggressively advancing toward an individual with fists clenched and raised, such
a statement cannot reasonably be viewed as a benign gag. To the contrary, such behavior
corroborates the actor's purpose to cause bodily harm to the intended victim. Woods, 48
Ohio St.2d at paragraph one of the syllabus.
{¶ 26} In sum, we cannot say that the trial court clearly lost its way in rendering its
decision. The record contains evidence which credibly establishes the elements necessarily
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to sustain appellant's conviction for domestic violence. This finding is dispositive of the issue
of sufficiency of the evidence as well. Accordingly, appellant's first and second assignments
of error are overruled.
{¶ 27} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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