State v. Moore
2021 Ohio 1856
Ohio Ct. App.
2021
Check Treatment

STATE OF OHIO v. JOHN W. MOORE

CASE NO. CA2020-09-016

IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY

6/1/2021

[Cite as State v. Moore, 2021-Ohio-1856.]

ΟΡΙΝΙΟΝ

CRIMINAL APPEAL FROM WASHINGTON COURT HOUSE MUNICIPAL COURT Cаse No. CRB1900950

Mark J. Pitstick, Washington Court House City Attorney, 224 N. Fayette Street, #1, Washington Court House, Ohio 43160, for appellee

Steven H. Eckstein, Fayette County Public Defender, 1208 Bramble Ave., Washington Court House, Ohio 43160, for appellant

S. POWELL, P.J.

{1} Appellant, John W. Moore, appeals his conviction in the Washington Court House Municipal Court after a jury found him guilty of one count of domestic violence. For the reasons outlined below, we affirm Moore‘s conviction.

{2} On August 28, 2019, Moore was arrested and charged with one count of domestic violence in violation of 2919.25(A), a first-degree misdemeanor. The charge arose after it was alleged Moore had struck the victim, H.M., the mother of his then two-month-old son, causing H.M. to suffer physical harm. Moore pled not guilty and the matter was tried to a jury on September 11, 2020. During trial, the jury heard testimony from four witnesses, including both H.M. and Moore.

{3} H.M. testified that she and Moore, who H.M. identified as the father of her infant son, got into an argument over ten dollars H.M. had stored in her vehicle‘s centеr console. H.M. testified that this argument ultimately resulted in a physical altercation between her and Moore. H.M. testified that during this altercation Moore choked her and elbowed her in the face three or four times. H.M. testified that Mоore also punched her in the face at least four times after she bit him on the arm for a “millisecond” to “get him off of [her].” H.M. testified that these blows caused her to slip “[i]n and out” of consciousness. H.M. also testified that these blows cаused her to suffer a “severe concussion” and a broken nose. When asked if she had fully recovered from her injuries, H.M. testified that she had not, that she was still seeing a doctor at least twice a year to “help fix the bridge of [her] nose so [her] sinuses aren‘t collapsed,” and that she has a “deviated septum from it all.”

{4} Moore testified in his defense and denied H.M.‘s claims. Moore instead testified that it was H.M. who was upset with him because he “was having fun with [his] family” and not “engaging any with her оr the baby,” a child Moore testified he “didn‘t even know” was his, while he, H.M., and the baby were at his cousin‘s house. Moore testified that this argument continued after they left his cousin‘s house and eventually morphed into a ‍‌​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‍dispute over “two tubes” of mediсal marijuana located in the center console of H.M.‘s vehicle. Moore testified that during this argument H.M. told him to “get this weed out of [her] car.” To this, Moore testified that he reached for the marijuana inside H.M.‘s vehicle, but that H.M. told him “no, yоu don‘t get both of them.” Moore testified that H.M. then threw the “two tubes” of marijuana onto the vehicle‘s floorboard by her feet.

{5} After H.M. threw the of marijuana onto the floorboard, Moore testified that he asked H.M., “what‘s the procedure with this?” To this, Moore testified that H.M. told him that he was “not going to get it, you‘re not going to get them.” Moore testified that he then reached down to pick up the of marijuana, but that H.M. “close[d] [his] arm in.” Moore testified that he then looked up when H.M. sсratched him on the head and bit him on the arm. Once H.M. bit him on the arm, Moore testified that he “hit [H.M.] one time,” which, according to Moore, knocked H.M. off of him. Moore, who described this incident as “[b]ite, strike, away,” then testified that he wished it had never happened, but that he had acted in self-defense by hitting H.M. in response to her scratching him in the head and biting him on the arm “so hard.”

{6} After both parties rested, the jury deliberated and returned a verdict finding Moore guilty as charged. Following the jury‘s verdiсt, the trial court proceeded immediately to sentencing and sentenced Moore to serve a 180-day jail term. The trial court also ordered Moore to pay court costs. In issuing its sentencing decision, the trial court statеd that “we‘ve all seen different types of [domestic violence],” but that “this is one of the worst.” The trial court also stated, “[H.M.] had a concussion, a broken nose. I wonder what had happened * * * if the police hadn‘t arrived so quickly.” Mоore now appeals his conviction, raising the following two assignments of error for review.

{7} Assignment of Error No. 1:

{8} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST THE APPELLANT, WHICH WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

{9} Assignment of Error No. 2:

{10} THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT AGAINST APPELLANT, WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{11} In his two assignments of error, Moore argues his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. We disagree.

{12} Whether the evidence presented is legally sufficient to sustain a verdict is a question of law. , ¶ 10 (12th Dist.). “When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court еxamines the evidence to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” , ¶ 9, citing , ¶ 9, 57. The relevant inquiry is “whether, after viewing the evidence in a light most favоrable to the prosecution, ‍‌​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‍any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” , paragraph two of the syllabus. This test “requires a determination аs to whether the state has met its burden of production at trial.” , ¶ 34, citing , ¶ 33. “[A] reversal based on insufficient evidence leads to an acquittal that bars a retrial.” , ¶ 27.

{13} Unlike a challenge to the sufficiency of the evidence, a manifest weight of thе evidence challenge examines the “inclination of the greater amount of credible evidence, offered at a trial, to support one side of the issue rather than the other.” , ¶ 14, citing , ¶ 34. “To determine whether a convictiоn is against the manifest weight of the evidence, the reviewing court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving the 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.” , ¶ 34, citing , ¶ 66. But, even then, the determination оf witness credibility is primarily for the trier of fact to decide. , ¶ 30, citing , paragraph one of the syllabus. This court, therefore, “will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the еvidence presented at trial weighs heavily in favor of acquittal.” , ¶ 10, citing , ¶ 43.

{14} As noted above, Moore was convicted ‍‌​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‍of domestic violence in violation of R.C. 2919.25(A). Pursuant to that statute, “[n]o person shall knowingly cause or attempt to сause physical harm to a family or household member.” A person acts knowingly when, regardless of purpose, “the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22(B). The term “physical harm” means “any injury, illness, or other physiological impairment regardless of its gravity or duration.” R.C. 2901.01(A)(3). R.C. 2919.25(F)(1)(b) defines a “family or household member” to include “[t]he natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.” Given these elements, domestic violence in violation of R.C. 2919.25(A) “‘is essentially assault with the added element that the person assaulted is a family or household membеr.‘” (Internal quotation marks deleted.) , ¶ 28, quoting , ¶ 45.

{15} Moore initially argues the jury‘s decision finding him to be a “family or household member” of H.M. was not supported by sufficient evidence and was against the manifest weight of the evidence since he testified that hе was not the father of H.M.‘s infant son. However, it is well established that, if believed, a victim‘s testimony that the defendant is the natural parent of the victim‘s child is sufficient to prove the defendant is the victim‘s “family or household member” as defined by R.C. 2919.25(F)(1)(b). See, e.g., , ¶ 13 (victim‘s testimоny that appellant was the biological father of her two-year-old son, if believed, was sufficient to prove the victim was appellant‘s “family or household member” as defined by R.C. 2919.25[F][1][b]); , ¶ 31 (“[victim‘s] testimony that [appellant] was the father of her child was sufficient to establish that [the victim] was a family or household member pursuant to R.C. 2919.25[F][1][b]“); , ¶ 18 (“[victim‘s] testimony that Defendant is the father of her child, if believed, is sufficient to establish ‍‌​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‍that fact and, concomitantly, that [the victim] is a family or household mеmber as defined by R.C. 2919.25[F][1][b]“).

{16} Given its verdict, the jury clearly chose to believe H.M.‘s testimony that Moore was the father of her infant son rather than the testimony offered by Moore that he was not the child‘s father. This was well within the jury‘s purview as the trier of faсt and ultimate fact finder. See , ¶ 19 (“[b]y its verdict, the jury clearly choose [sic] to credit some, if not all, of [the victim‘s] testimony regarding the assault and her resulting injuries,” a decision which “was well within the jury‘s purview as the trier of fact and ultimatе fact finder“). This is particularly true here when considering Moore specifically testified and acknowledged that he was present with H.M. for the child‘s birth. Therefore, contrary to Moore‘s claim, the jury‘s decision finding he was a “family or household member” of H.M. as defined by R.C. 2919.25(F)(1)(b) by virtue of Moore being the father of H.M.‘s infant son was supported by sufficient evidence and was not against the manifest weight of the evidence. Moore‘s claim otherwise lacks merit.

{17} Moore also arguеs his conviction was against the manifest weight of the evidence because the state failed to prove that he did not act in self-defense given his testimony that he caused H.M. physical harm only after she scratched him and bit him on the аrm “so hard.” However, while it may be true that it was the state that had the burden to prove Moore had not acted in self-defense, see R.C. 2901.05(B)(1), the jury was presented with two conflicting versions of events: one from H.M. and one from Moore. “[W]hen 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.” , ¶ 17. This is because, “[a]s the trier of fact in this cаse, the jury was in the best position to judge the credibility of witnesses and the weight to be given the evidence.” , ¶ 24, citing , ¶ 41.

{18} Again, given its verdict, the jury clearly chose to believe H.M.‘s testimony that Moore was the initial aggressor who had cаused H.M. physical harm, i.e., that it was Moore who was at fault in creating the ‍‌​​​‌‌‌​‌‌‌​‌​‌‌‌​‌‌‌‌‌​‌‌‌​​‌‌‌​‌‌‌​‌‌​‌‌​‌‌​‌‌‍situation that gave rise to the affray between he and the victim, H.M. Despite Moore‘s claims, the jury did not have to accept his claim of self-defense simply because he asserted the defense at trial. See , ¶ 19 (“[t]he jury was free to find [appellant‘s] testimony regarding self-defense not credible, and instead believe the State‘s version of the events. [Appellant‘s] conviction is not agаinst the manifest weight of the evidence simply because the jury chose to do so“); , ¶ 85 (“[t]he fact that [appellant] testified concerning his affirmative defense of self-defense does not mean that the jury had to believe him“).

{19} Given the еvidence presented at trial that Moore was not acting in self-defense when he caused physical harm to H.M., Moore‘s domestic violence conviction was not against the manifest weight of the evidence. This is because, as noted above, the state proved beyond a reasonable doubt that Moore was the initial aggressor who knowingly caused H.M., the mother of his then two-month-old son, physical harm by choking H.M., elbowing H.M. in the face three or four times, аnd punching H.M. in the face at least four times. See, e.g., , ¶ 17-22 (appellant‘s conviction for domestic violence was not against the manifest weight of the evidence where “the state proved beyond a reasonable doubt thаt appellant was the initial aggressor and that he knowingly caused physical harm to his wife by shoving her to the ground and choking her“). Therefore, finding no merit to any of the arguments raised by Moore herein, Moore‘s two assignments of error lack merit and are overruled.

{20} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.

Read the detailed case summary