STATE OF OHIO v. CARLOS FRANCISCO GOMEZ
C.A. Nos. 25496, 25501
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
October 26, 2011
[Cite as State v. Gomez, 2011-Ohio-5475.]
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2009 07 2145
Dated: October 26, 2011
CARR, Judge.
{1} Carlos Gomez appeals his conviction in the Summit County Court of Common Pleas. The State appeals from the judgment imposing sentence. This Court affirms, in part, and reverses, in part, and remands for resentencing.
I.
{2} On July 23, 2009, Gomez was indicted on one count of domestic violence in violation of
{3} The matter proceeded to trial before a jury. At the conclusion of trial, the jury found Gomez guilty of domestic violence and further made a finding that Gomez knew that the
{4} Prior to sentencing, Gomez filed a motion in opposition to the imposition of a mandatory prison term pursuant to
II.
GOMEZ’ ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN DENYING APPELLANT‘S CRIM.R. 29 MOTION AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.”
{5} Gomez argues that the trial court erred by denying his motion for acquittal pursuant to Crim.R. 29, because the State presented insufficient evidence to sustain a conviction for domestic violence. This Court disagrees.
{6} Crim.R. 29 provides, in relevant part:
“(A) The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.”
“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. Galloway (Jan. 31, 2001), 9th Dist. No. 19752, citing State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus.
{7} The test for sufficiency requires a determination of whether the State has met its burden of production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring).
{8} Gomez was convicted of domestic violence in violation of
{9} On appeal, Gomez argues only that the State failed to present sufficient evidence that the victim was a family or household member.2 “Family or household member” includes “a person living as a spouse.”
{10} At trial, two eye witnesses to the incident testified that they heard a man and a woman arguing loudly in a parking lot next door to where the two eye witnesses were working at approximately 11:00 p.m. on July 8, 2009. Robert Wimley and Chazman Addie both testified that they saw the man cock his arm back as if to hit the woman, but he instead grabbed the woman by the neck and choked her to the ground. The man then stood over the woman and continued to scream at her. Messrs. Wimley and Addie went inside their place of business and asked their manager to call the police. Lindsey Baker called 911 and the police arrived on the scene.
{11} Officer Jamie Mizer of the Springfield Police Department testified that she was dispatched to the scene regarding a male who had choked a female to the ground. When she arrived, the couple had already been separated, and Gomez was in handcuffs in the back of a deputy sheriff‘s cruiser. The victim was standing in front of the cruiser. The officer testified that she took statements from various witnesses and then spoke with the victim at the scene.
{13} Officer Mizer transferred Gomez to her cruiser and drove him to the police station where she was able to question him. The officer testified that Gomez informed her that he lived at 571 Lynnfield Street, Lynn, Massachusetts. When she asked Gomez how far along his girlfriend was into her pregnancy, Gomez, without correcting the officer‘s description of the couple‘s status, told her “four months.” She testified that she learned that Gomez and the victim were staying at a Quality Inn near the scene of the incident. Officer Mizer testified that she charged Gomez with felony domestic violence because of eye witness statements regarding the incident, visible injuries on the victim‘s neck, and the admission by Gomez that the victim was pregnant.
{14} Reviewing the evidence in a light most favorable to the State, this Court concludes that any rational trier of fact could have found the essential elements of the charge of domestic violence were proved beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus. The State presented evidence that Gomez, knowing that the
GOMEZ’ ASSIGNMENT OF ERROR II
“THE JURY CREATED A MANIFEST MISCARRIAGE OF JUSTICE AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{15} Gomez argues that his conviction for domestic violence is against the manifest weight of the evidence. This Court disagrees.
“In determining whether a criminal 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 (1986), 33 Ohio App.3d 339, 340.
“Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins, 78 Ohio St.3d at 387. Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder‘s resolution of the conflicting testimony. Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.
{16} This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387.
{17} Gomez presented the testimony of the victim and he testified in his own defense.
{19} The victim denied living with Gomez and testified that she only gave his address as her own to police because she was nervous and she had been staying at his house during the two days prior to the incident. The victim testified that she has not had any contact with Gomez during the pendency of this case but that she would like for the two of them and their baby to be together as a family.
{20} Gomez testified in his own defense. He admitted that he knew that the victim was pregnant with his child on the night of the incident. He further testified as follows. Gomez, the victim, and one of his employees were on a business trip from Massachusetts to Detroit, Chicago, and Canton when the incident occurred. The victim was with him the whole time. Gomez got one hotel room for himself and the victim, while his employee got a separate room. Gomez took the victim to dinner at one restaurant, while the employee went elsewhere to eat.
{22} Gomez denied assaulting the victim. Instead, he testified that it was the victim who was acting “crazy and stupid” that night.
{23} This Court will not overturn the trial court‘s verdict on a manifest weight of the evidence challenge only because the trier of fact chose to believe certain witness’ testimony over the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, at ¶22.
{24} A review of the record indicates that this is not the exceptional case, where the evidence weighs heavily in favor of Gomez. A thorough review of the record compels this Court to find no indication that the trial court lost its way and committed a manifest miscarriage of justice in convicting Gomez of domestic violence.
{25} The weight of the evidence supports the conclusion that Gomez knew the victim was pregnant with his child when he choked her. Eye witness testimony indicated that the couple was yelling and that Gomez cocked his arm back before grabbing the victim‘s neck and
THE STATE‘S ASSIGNMENT OF ERROR
“THE COURT ERRED IN NOT IMPOSING A MANDATORY PRISON TERM OF AT LEAST SIX MONTHS”
{26} The State argues that the trial court erred by failing to impose a mandatory prison term of at least six months for Gomez’ domestic violence conviction. This Court agrees.
{28}
{29} The trial court refused to impose a mandatory prison term on Gomez notwithstanding his fifth degree felony conviction for domestic violence committed at a time in which he knew the victim was pregnant because of what the court found to be a “nonsensical reference *** to division (A)(6) of that statute.” Division (D) of the statute addresses sentencing issues. The trial court found division (D) to be “rife with references to nonexistent divisions.” It is true that the version of the statute in effect at the relevant time contained references in division
(D) to nonexistent subsections in division (A). We nevertheless conclude that the trial court erred by failing to impose a mandatory prison term on Gomez.
{30}
{31} Applying the above reasoning, this Court recently addressed this exact issue in State v. Cross, 9th Dist. No. 25487, 2011-Ohio-3250. The majority wrote: “It is clear that the statute does not contain a section (A)(6), thus, the reference is obviously in error. It was the clear intent of the General Assembly to impose a mandatory prison term if the offender knew that the victim was pregnant. In addition, the plain language of the statute states that it is a felony of the fifth degree. The General Assembly delineated mandatory prison terms in section (D)(6) of the statute.” Id. at ¶44. While recognizing that the correction of express statutory
III.
{32} Gomez’ assignments of error are overruled. The State‘s assignment of error is sustained. Gomez’ conviction for domestic violence is affirmed, but the judgment of sentence is reversed and the cause is remanded for imposition of a sentence consistent with this decision.
Judgment affirmed, in part,
reversed, in part,
and cause remanded.
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.
Costs taxed to Carlos Gomez.
DONNA J. CARR
FOR THE COURT
DICKINSON, J.
CONCURS
BELFANCE, P. J.
CONCURS IN PART, AND DISSENTS IN PART, SAYING:
{33} I respectfully dissent form the majority‘s determination that Mr. Gomez’ Crim.R. 29 motion was properly overruled although I agree with the majority‘s standard in assessing this assignment of error. This Court has not always recognized the distinction between a general challenge to the sufficiency of the evidence on appeal and a challenge to the trial court‘s denial of a Crim.R. 29 motion. See e.g. State v. Bezak (Feb. 18, 1998), 9th Dist. No. 18533, at *1-*2. A general challenge to the sufficiency of the evidence permits this Court to examine all of the evidence produced at trial. See id. However, a review of the denial of a Crim.R. 29 motion should be limited to the evidence presented by the State. In this case, Mr. Gomez made a Crim.R. 29 motion when the State rested, and he renewed his motion at the end of the trial. Thus, I agree that the majority properly limited itself to consideration of the evidence presented in the State‘s case.
{35} The Supreme Court of Ohio has held that “the offense of domestic violence * * * arises out of the relationship of the parties rather than their exact living circumstances.” State v. Williams (1997), 79 Ohio St.3d 459, 463-464. The Court went on to state that “the essential elements of ‘cohabitation’ are (1) sharing of familial or financial responsibilities and (2) consortium.” Id. at 465. “Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, clothing, utilities, and/or commingled assets. Factors that might establish consortium include mutual respect, fidelity, affection, society, cooperation, solace, comfort, aid of each other, friendship, and conjugal relations.” Id.
{36} I agree that the State did meet the minimum threshold necessary to establish the element of consortium. However, I cannot say that it provided evidence that the victim and Mr. Gomez shared familial or financial responsibilities. See id. The State presented evidence that the address on Mr. Gomez’ driver‘s license was the same as the address the victim gave to police and that the two were staying together at the same hotel. There was no evidence that Mr. Gomez was paying for the victim‘s hotel room or buying her food or other necessities. There was no evidence that established the existence of shared familial responsibilities such as the provision of shelter, food, clothing, or utilities nor whether the parties had shared financial responsibilities or assets. It was also established that the two were not married and that the victim was four months pregnant. There is no evidence from the State‘s case indicating who the father of the victim‘s child is. Further, the only evidence presented in the State‘s case that Mr. Gomez and the victim
{37} Based solely upon the evidence presented in the State‘s case, I cannot conclude that the State proved that the victim and Mr. Gomez cohabited. To conclude that Mr. Gomez and the victim shared familial or financial responsibilities would require the fact finder to assume facts not in evidence. This is not to say that Mr. Gomez could not have been charged and perhaps convicted of a crime based upon the evidence presented by the State; however, the State proceeded only under the domestic violence statute and not another similar statute, such as
{38} As I would sustain Mr. Gomez’ first assignment of error, I would decline to address his remaining assignment of error and the State‘s assignment of error as they would be rendered moot. See App.R. 12(A)(1)(c).
APPEARANCES:
MARTHA HOM, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.