State v. GippState v. Gipp
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant
HALL, P.J.
{¶ 1} Steven Gipp appeals from his conviction and sentence on one count of fourth-degree felony domestic violence.
{¶ 2} Gipp advances three assignments of error. The first two address the legal sufficiency and manifest weight of the evidence to support his conviction. The third challenges the trial court‘s decision to declare the сomplainant a hostile witness at trial.
{¶ 3} The record reflects that Gipp was charged with two counts of domestic violence based on a January 21, 2017 incident that occurred in an apartment he shared with his fiancée, the cоmplainant. The first count charged him with a fifth-degree felony based on his knowledge that the victim was pregnant. The second count charged him with a fourth-degree felony based on his having a prior domestic-violence conviction. The matter proceeded to an April 17, 2017 bench trial at which the State presented three witnesses.
{¶ 4} The first witness was Montgomery County Sheriff‘s Deputy Brian Godsey. He testified that he was dispatched to Gipp‘s apartment on a domеstic-violence call. Upon entering the apartment, he observed Gipp passed out in bed. He proceeded to arrest Gipp and to take photographs of the complainant, who had visible “scrapеs” on her face. He also took pictures of the interior of the apartment.
{¶ 5} The second witness was Kyle Baranyi, a detective with the Montgomery County Sheriff‘s office. He testified that he conducted a post-arrest interview of Gipp. According to Baranyi, Gipp explained that he came home intoxicated and began arguing with the complainant. Gipp admitted knowing that she was pregnant. He also admitted having a prior domestic-violenсe conviction. Baranyi testified that Gipp denied “anything
{¶ 6} The final witness at trial was the сomplainant. Although the prosecutor had subpoenaed her, she initially failed to appear to testify. Her attendance then was secured on a material-witness warrant. At the outset of her testimony, she identified herself аs Gipp‘s fiancée and stated that she did not want to testify and did not want to incriminate him. (Tr. at 24-27). After being admonished by the trial court, she acknowledged being pregnant and residing with Gipp. When asked by the prosecutor what had happened during thе incident in question, the complainant insisted that she and Gipp had an argument that was “only verbal.” (Id. at 28). The State then moved to treat the complainant as a hostile witness. Over defense counsel‘s objection, the trial court sustained the motion. (Id. at 20-31).
{¶ 7} The complainant proceeded to tell the prosecutor that she and Gipp were mutually “tussling” in the apartment. She claimed that she and Gipp both had “started it” and that they both were throwing “fists.” The complainant denied being able to recall who threw the first punch. (Id. at 31-33). She insisted that they had hit each other with a folding table and a mirror. (Id. at 34-36). With regard to the scratches or scrapes on her face, she testified that she and Gipp both had caused them. (Id. at 36). The complainant acknowledged that she left the scene by exiting the back door and going to a neighbor‘s house, where she called her grandmother and then called the police. (Id. at 37-41).
{¶ 8} On cross-examination by defense counsel, the complainant reiterated her testimony that the physical altercation was mutual and that she and Gipp “both” had started it. (Id. at 47). The complainant also stated that she was not testifying freely, that
{¶ 9} After considering the evidence, the trial court found Gipp guilty on both counts of domestic violence. (Id. at 65-66). It merged the two counts for sentencing, and the State elected to proceed on count two, the fourth-degree felony. (Id. at 67). The trial court imposed a nine-month prison sentence. This appeal followed.
{¶ 10} In his first two assignments of error, Gipp challenges the legal suffiсiency and manifest weight of the evidence to sustain his conviction. In support, he asserts that the complainant started the verbal argument and that they then “tussled” and hit each other while engaged in “mutual fighting.” Gipp also notes that a child was asleep when the police officer arrived and that the officer saw no marks on the table or mirror involved in the incident. Finally, he notes the complainant‘s testimony that the marks on her face resulted from the mutuаl altercation.
{¶ 11} When a defendant challenges the sufficiency of the evidence, he is arguing that the State presented inadequate evidence on an element of the offense to sustain the verdict as a matter оf law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 13} With the foregoing standards in mind, we conclude that Gipp‘s conviction is supported by legally sufficient evidence and is not against the weight of the evidence. For both counts of his indictment, the only real issue is whether he knowingly caused or attempted to cause physical harm, as required by
{¶ 14} We reach the same conclusion with regard to Gipp‘s manifest-weight challenge. As the trier of fact, the trial court “was free to believe all, part, or none of the testimony of each witness and to draw reasonable inferences from the evidence presented.” State v. Fields, 2d Dist. Clark No. 2016-CA-76, 2017-Ohio-7745, ¶ 42, citing
{¶ 15} In his third assignment of error, Gipp challenges trial court‘s decision to declare the complainant a hostile witness. He argues that the trial court erred in doing so because the State failed to establish that it was surprised by her testimony.
{¶ 16} “A ‘hostile witness’ is one who surprises the calling party at triаl by turning against that party while testifying.” State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 33 (2d Dist.), citing State v. Darkenwald, 8th Dist. Cuyahoga No. 83440, 2004-Ohio-2693, ¶ 15. “[A] party demonstrates surprise when a witness‘s trial testimony is ‘materially inconsistent’ with a prior statement and counsel did not have reason to believe that the
{¶ 17} Here the complainant began her testimony about the incident in question by asserting that it involved a dispute that was “only verbal.” (Tr. at 28). The prosecutor appears to have been surprised by this response, which would not support a domestic-violence charge. (Id.). At a sidebar, the prosecutor admitted knowing that the complainant did not want to prosecute Gipp. The prosecutor denied knowing, however, that thе complainant would change her story. (Id. at 29). The prosecutor explained that the complainant‘s testimony was “contradictory” to the prosecutor‘s “prior conversations with the victim * * *.” (Id. at 30). The trial court then allowed the prosecutor to treat the complainant as a hostile witness. (Id. at 30-31).
{¶ 18} Upon review, we see no abuse of discretion in the trial court‘s decision. The complainant‘s testimony about engaging in nothing more than a verbal argument with Gipp surprised the prosecutor. In addition, the prosecutor explained that the complainant‘s testimony was “contradictory” to prior statements the complainant had made about the incident. Under these cirсumstances, we see no abuse of discretion in the trial court allowing the prosecutor to ask leading questions based on a hostile-witness determination.1 The third assignment of error is overruled.
DONOVAN, J. and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Heather N. Jans
Robert Alan Brenner
Hon. Richard Skelton