Case Information
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[Cite as
Hamilton v. Purvis
,
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
STATE OF OHIO/CITY OF HAMILTON, :
Plаintiff-Appellee, : CASE NO. CA2017-09-134 : O P I N I O N - vs - 7/23/2018 :
DAVID E. PURVIS, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case No. 17CRB02000-A
Neal D. Schuett, Hamilton City Prosecutor, 345 High Street, Hamilton, Ohio 45011, for plaintiff-appellee
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant- appellant
HENDRICKSON, J. Defendant-appellant, David E. Purvis, appeals from his conviction in the Hamilton Municipal Court for domestic violence. For the reasons set forth below, we affirm his conviction. Following an incident that occurred between appellant and his 14-year-old
daughter, E.P., at E.P.'s friend's home in New Miami, Ohio on May 13, 2017, appellant was *2 arrested and charged with onе count of domestic violence in violation of R.C. 2919.25(A), a misdemeanor of the first degree. Appellant pled not guilty to the charge and the matter proceeded to a bench trial before a magistrate. At trial, the state presented testimony from E.P., New Miami Police Offiсer
Joseph Snyder, and Matthias Jones, an eyewitness to the incident. E.P. testified she did not have permission to be at her friend's house on May 13, 2017, and her parents had demanded that she leave. E.P. refused and appellant and his wife went to E.P.'s friend's house to escort E.P. home. E.P. testified that once appellant arrived, he grabbed her by the back of the
neck "really hard" and started to walk her towards the door. E.P. did not like being forced out of the house and shrugged her shoulders to try to get appellant to release her. Appellant, still holding E.P. by the neck, responded to E.P.'s efforts by hitting her in the mouth. E.P. could not recall which hand appellant used to hit her in the mouth but stated the hit "felt more [like] a punch than a slap." E.P. did not suffer any bruising or cuts to her mouth, but she claimed her face was swollen the following morning. She did not, however, take any photograрhs of her swollen face. After appellant struck E.P. in the mouth, he continued to force E.P. out of her
friend's home. Once E.P. was outside, appellant attempted to push her into his vehicle. E.P. resisted and appellant and his wife, E.P.'s mother, held E.P. against the side of the car so that she could not get away. While appellant attempted to force E.P. into his vehicle, E.P.'s friend's stepfather, Jones, called 9-1-1 to report the incident. After officers arrived on the scene, E.P. spoke with an officer about appellant hitting her in the mouth. Jones testified he wаs present when appellant tried to force E.P. out of his
home. Jones observed appellant grab E.P. and try to shove her out the door. He also saw appellant "haul off and punch" E.P. with his closed, right fist. Jones testified that "no child *3 should be hit like that," and he called the police to report appellant's actions. Officer Snyder responded to Jones' home around 11:00 p.m. after receiving
notice of the domestic dispute. When he arrived on scene, he observed appellant, E.P., and E.P.'s mother in Jones' driveway near a vehicle. Apрellant had his arms around E.P. and appeared to be restraining her. Snyder instructed appellant to release E.P. and then spoke to appellant, E.P., and Jones. During Snyder's conversation with appellant, appellant stated that E.P. struck
him when he was trying to get her to leavе Jones' house. Appellant also told Snyder that he "smacked [E.P.] with an open hand" and that he did so because "he was allowed to discipline his * * * daughter." Snyder then spoke with a hysterical E.P. and obtained her version of events. Snyder testified that as someone who deals with domestic violence calls on a
"regular basis," he is familiar with what a person looks like after a person has been punched in the face, and he did not see any marks on E.P. that were consistent with being punched in the face. As Snyder did not observe any redness or visible injuries to E.P.'s face, no photographs were taken at the scene. Nonetheless, based on Jones' and E.P.'s statements, Snyder arrested appellant for domestic violence. Following Snyder's testimony, defense counsel moved for acquittal pursuant to
Crim.R. 29. His motion was denied, and appеllant presented testimony from E.P.'s mother and grandmother on behalf of his defense. Mother testified that when she and appellant arrived at Jones' residence to take E.P. home, E.P. used foul language and refused to leave. When appellant put his hand behind E.P.'s head to usher her out the house, E.P. "started fighting him and she cussed and then she threw her hand up and hit him." Mother then saw appellant "smack" E.P. with an open hand. Mother opined that the hit "wasn't anything major" and was an appropriate form of discipline. Mother believed the hit "was warranted" *4 given E.P.'s actions that еvening and her history of unruly behavior, which had required Mother to call the police on E.P. "several times" in the past.
{¶ 11} After the incident, E.P. stayed at her grandmother's home. Grandmother testified that she did not see any marks or swelling to E.P.'s face in the days that followed the May 13, 2017 incident.
{¶ 12} After considеring the forgoing testimony, the magistrate found appellant guilty of domestic violence. Appellant was sentenced to 90 days in jail, with 88 days suspended and jail-time credit for two days, and two years of nonreporting community control. He was also ordered to pay a fine of $100 and court costs. The magistrate's decision was filed on July 25, 2017. Appellant did not file
objections and the trial court adopted the magistrate's decision. Appellant timely appealed his conviction, raising the following as his sole assignment of error: [APPELLANT'S] CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his sole assignment of error, appellant argues his conviction for domestic
violence should be reversed as it is against the manifest weight of the evidence. Appellant contends the weight of the evidence demonstrates he did not punch his daughter in the face but, rather, properly disciplined his dаughter when he smacked her in the face with his open palm. We must first determine whether appellant's assignment of error is properly
before this court. As this was a bench trial held before a magistrate, the provisions set forth in Crim.R. 19 apply. Pursuant to Crim.R. 19(3)(D)(B)(iv), a party forfeits appellаte review of an issue, except for a claim of plain error, unless the party files objections to the magistrate's decision within 14 days of its issuance. This rule, however, is affected when a magistrate's decision does not comply with the requirements set forth in Crim.R. 19(D)(3)(a)(iii). *5 Crim.R. 19(D)(3)(a)(iii) provides as follows: A magistrate's decision shall be in writing, identified as a magistrate's decision in the caption, signed by the magistrate, filed with the clerk, and served by the clerk on all parties or their attorneys no later than three days after the decision is filed. A magistrate's decision shall indicate сonspicuously that a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Crim.R. 19(D)(3)(a)(ii), unless the party timely and specifiсally objects to that factual finding or legal conclusion as required by Crim.R. 19(D)(3)(b) .
(Emphasis added.) The purpose of the procedures set forth in in Crim.R. 19(D) is to afford
the parties with a meaningful opportunity to file objections to the magistrate's decision. State
v. Wheeler , 2d Dist. Montgomery No. 26702,
19(D)(3)(a)(iii), as it did not provide notice to the parties that the failure to object to the
decision would forfeit all but plain error on appeal. This court has not previously addressed
the consequences that result from the failure to provide the notice required by Crim.R.
19(D)(3)(a)(iii). However, as the language of Crim.R. 19(D)(3)(a)(iii) mirrors the language of
Civ.R. 53(D)(3)(a)(iii) and Juv.R. 40(D)(3)(a)(iii), it is appropriate to rely on this court's
precedents in applying those analogous provisions. See Wheeler at ¶ 9, fn. 1; State v.
Masalko , 9th Dist. Wayne No. 15AP0011,
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177,
which provides that "[n]o person shall knowingly cause or attempt to cause physical harm to
a family or household member." Pursuant to R.C. 2901.22(B), "[a] person acts knowingly,
regardless of purpose, when the person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain nature."
Appellant contends "the evidence weigh[s] hеavily in favor of acquittal"
because he demonstrated he was properly and reasonably disciplining E.P. when he hit her
in the face with his open palm. "[T]he domestic violence statute does not prohibit a parent
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from properly disciplining his or her child." State v. Sellers , 12th Dist. Butler No. CA2011-05-
083,
history of unruly behavior, and on the date of the incident, was disobedient and uncooperative when she ignored her parents' repeated instructions to leavе her friend's home, there was contradictory evidence presented regarding the severity of the punishment and appellant's state of mind when administering the punishment. The magistrate was presented with two different versions of events at trial. E.P. testified appellant hit her in the mouth and that the hit "felt more [like] a punch than a slap." Jones testified he witnessed appellant "haul off and punch" E.P. in the face with his closed, right fist. Jones felt that "no child should be hit like that" and neither he nor E.P. recalled appellant discussing punishment with E.P. before striking her in the face. Mother, on the other hand, testified that appellant used his open hand to "smack" E.P. in the face after E.P. struck appellant. Mother claimed the smack "wasn't anything major" and was an appropriate form of discipline.
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"It is well-established that when conflicting evidence is presentеd 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,
[T]he question is whether or not there was a punch or not. In which, everybody kind of agrees is not reasonable. And * * * you know what? I believe Matthias [Jones] in this case. I believe it was a punch and I don't know why he would say that if it wasn't true. I mean, it just you know, the way he testified is, it wasn't right. It took him by surprise that that happened and I believe him and I believe his testimony so I'm going to make a guilty finding. Based on the evidence presented at trial, we find that appellant's conviction for
domestic violence wаs not against the manifest weight of the evidence. The court was entitled to find beyond a reasonable doubt that appellant knowingly caused physical harm to his teenage daughter when he struck her in the mouth with a closed fist. The court was also entitled to find that a closed fist punch to the face was not proper and reasonable parental discipline. Appellant's sole assignment of error is overruled. Judgment affirmed.
S. POWELL, P.J., and RINGLAND, J., concur.