State v. Kemper
983 N.E.2d 951
Ohio Ct. App.2012Background
- Kemper and Winters were in a two-year relationship and lived together until 2009; a dispute arose over Kemper entering Winters' home to recover belongings.
- Kemper allegedly shoved Winters to gain entry, and the television assembly and cable box were involved, causing Winters to call 911 and obtain a protection order.
- Several months later Winters reported Kemper contacted her and that her home was broken into; she suspected Kemper of instigating the break-in to obtain a lease document.
- Kemper was charged with assault, two temporary protection-order violations, and telephone harassment; a magistrate held a bench trial with Winters, Kemper, and Baker testifying.
- The magistrate found Kemper guilty of one protection-order violation and assault, but not guilty on the telephone harassment and another protection-order violation; sentence included fines, probation, and anger management.
- On appeal, the trial court’s Crim.R. 29 denial of acquittal was reviewed for sufficiency; the appellate court reversed and vacated the assault conviction but affirmed the protection-order violation conviction, and upheld magistrate jurisdiction with consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for assault | Kemper argues the shove incident proved no intent to harm. | Kemper contends there was no knowable intent to cause physical harm. | Assault conviction reversed for insufficiency of proof. |
| Manifest weight of the evidence for protection-order violation | Winters testified Kemper violated the protection order by approaching within two blocks and contacting her. | Kemper argues the evidence does not support a clear violation under the order. | Conviction not against the manifest weight; sustained. |
| Authority and consent for magistrate trial on misdemeanor | Consent to magistrate trial was properly given by both parties in writing. | Kemper claims lack of voluntary consent to magistrate jurisdiction. | Written consent valid; magistrate proceedings proper. |
Key Cases Cited
- State v. Adams, 12th Dist. No. CA2006-07-160 (2007 Ohio) (standard for sufficiency review under Crim.R. 29)
- State v. Miley, Ohio App.3d 114 (1996) (sufficiency standard for appellate review)
- State v. Wilson, 12th Dist. No. CA2006-01-007 (2007 Ohio) (sufficiency review framework)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (standard for reviewing evidence in criminal cases)
- State v. Cummings, 12th Dist. No. CA2006-09-224 (2007 Ohio) (weight of the evidence and credibility)
- State v. Walker, 12th Dist. No. CA2006-04-085 (2007 Ohio) (credibility and weight issues for the trier of fact)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (clear standard for manifest weight review)