State v. SlevinState v. Slevin
Dated: May 9, 2012
BELFANCE, Judge.
{¶1} Defendant-Appellant Merrick Slevin appeals from the judgments of the Summit County Court of Common Pleas. For the reasons set forth below, we affirm in part and reverse in part.
I.
{¶2} Mr. Slevin аnd the victim lived together for several months in 2010. One evening in December 2010, the victim found Mr. Slevin with a man engaged in a sexual act. The victim went “ballistic” and “flipp[ed] out[.]” Mr. Slevin then attacked the victim, choking and punching her and threatening her with a knife. Mr. Slevin was charged with three counts of domеstic violence in relation to the events of that evening. Also as a result, a criminal temporary protection order was issued against Mr. Slevin. On January 6, 2011, police found Mr. Slevin with the victim and arrested him. In relation to that incident, Mr. Slevin was charged with violating a protection order and illegal use or possession of drug paraphernalia.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT SENTENCED SLEVIN FOR TWO COUNTS OF DOMESTIC VIOLENCE AS THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO MERGER UNDER
R.C. 2941.25 .
ASSIGNMENT OF ERROR II
SLEVIN WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TWO COUNTS OF DOMESTIC VIOLENCE WERE ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO MERGER UNDER
R.C. 2941.25 .
{¶4} Mr. Slevin asserts in his first assignment of error that the trial court committed plain error in failing to merge his convictions for purposes of sentencing. Mr. Slevin argues in his second assignment of error that his trial counsel was ineffective for failing to argue the offenses were allied and merged for purposes of sentencing.
{¶5} The resolution of this issue is controlled by State v. Johnson, 128 Ohio St.3d 153, 2010–Ohio–6314, in which the Supreme Court of Ohio outlined a new test for determining whether offenses are allied and subject to merger. See id. at syllabus. Johnson was released prior to Mr. Slevin‘s sentencing; however, the issue of allied offenses was not raised at sentencing. Thus, assuming the offenses are allied, the State did not have the opportunity to elect the offense for which it wanted the trial court to sentence Mr. Slevin. See State v. Edwards, 9th Dist. No. 25679, 2012-Ohio-901, ¶ 4. While Mr. Slevin has argued plain еrror on appeal, he
{¶6} In light of our resolution of Mr. Slevin‘s first assignment of error, we decline to address the merits of his second assignment of error. See
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST SLEVIN WITHOUT COMPLYING WITH
R.C. 2947.23(A) .
{¶7} Mr. Slevin asserts in his third assignment of error that the trial сourt erred in imposing court costs in its sentencing entry when it failed to notify him it was doing so at the sentencing hearing. We agree.
{¶8} Even though ”
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING ATTORNEY FEES AGAINST SLEVIN WITHOUT COMPLYING WITH
R.C. 2941.51(D) .
{¶10} Mr. Slevin asserts in his fourth assignment оf error that the trial court erred in assessing attorney fees against him without complying with
{¶11} Generally, the attorney fees “approved by the court * * * shall not be taxed as part of the costs and shall be paid by the county.”
{¶12} The trial court made no determination on the record that Mr. Slevin was capable of paying for the court-appointed attorney fees. Thus, Mr. Slevin‘s fourth assignment of error is
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT OVERRULED SLEVIN‘S CRIM.[R.] 29(A) MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN THE CONVICTIONS.
{¶13} Mr. Slevin has argued his fifth and sixth assignments of error together, asserting that his convictions for domestic violence are based on insufficient evidence and are against the manifest weight of the evidence. Nonetheless, because a review of the sufficiency and manifest weight of the evidence are separate and distinct legal determinations, we discuss them separately. State v. Underwood, 9th Dist. No. 10CA0048-M, 2011-Ohio-5703, ¶ 14.
{¶14} In his sixth assignment of error, Mr. Slevin asserts that the trial court erred in denying his Crim.R. 29(A) motion as the State presented insufficient evidence to sustain his convictions for domestic violence. Mr. Slevin does not challengе the sufficiency of his remaining convictions.
{¶15} We review a denial of a defendant‘s Crim.R. 29 motion for acquittal by assessing the sufficiency of the State‘s evidence. State v. Frashuer, 9th Dist. No. 24769, 2010–Ohio–634, ¶ 33. “Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appеllate 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 а 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.
{¶16} Mr. Slevin was found guilty of two charges of violating
{¶17} Mr. Slevin does not appear to assert that the State failed to prove any particular element of the two domestic charges. Instead, Mr. Slevin asserts that the victim‘s testimony was not credible. However, when reviewing the denial of a Crim.R. 29 mоtion, this Court evaluates the evidence in a light most favorable to the prosecution and does not consider credibility. See Jenks at paragraph two of the syllabus; see also State v. Frazier, 9th Dist. No. 25654, 2012-Ohio-790, ¶ 50.
{¶19} Viewing the evidence in a light most favorable to the prosecution, we conclude that the Stаte presented sufficient evidence, if believed, to prove beyond a reasonable doubt that Mr. Slevin knowingly caused or attempted to cause physical harm to the victim, who was a family or household member, that Mr. Slevin had a prior conviction, and Mr. Slevin knew the victim wаs pregnant. Accordingly, we overrule Mr. Slevin‘s sixth assignment of error.
ASSIGNMENT OF ERROR V
SLEVIN‘S CONVICTIONS FOR DOMESTIC VIOLENCE ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶20} Mr. Slevin asserts in his fifth assignment of error that his convictions for domestic violence are against the manifest weight of the evidence. We do not agree.
{¶21} In reviewing a challenge to the weight of the evidence, the appellate court:
[m]ust 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, 33 Ohio App.3d 339, 340 (9th Dist.1986).
{¶22} Mr. Slevin‘s primary contention that his convictions for domestic violence are against the manifest weight of the evidence appears to be that the victim was not a credible witness. We note that, while the victim admitted to prior convictions implicating her propensity for telling the truth and admitted to using crack, including likely on the day of the incident, the victim‘s testimony was not directly contradicted. The victim testified to the events as discussed above. Following the incident, the victim asserted that she saw Mr. Slevin throw the knife outside, but she did not see where it went. When police arrived, the victim was outside, and Mr. Slevin was nowhere to be found. Officers noted that the victim appeared upset and kept saying over and over again that she could not believe Mr. Slevin did this. Police observed injuries and scratches to the victim‘s forearm and neck and that she had a swollen eye. The police testified that the victim‘s description of the items in the room and how the residence looked generally corresponded to the sсene police found when they entered the residence. Further, what the victim told police matches what the victim testified to at trial. There was no testimony that the victim was the aggressor or that Mr. Slevin was acting in self-defense.
{¶23} Mr. Slevin asserts that the victim‘s testimony is not to be believed because her testimony concerning the 911 call is not supported by the evidence. The victim testified that she went across the street to have the neighbor call 911; however, the 911 call that was actually made was placed by a neighbor a couple doors down, not by a neighbor across the street, and was placed at Mr. Slevin‘s request. Police were unable to speak with the neighbor who placed the
{¶24} After a thorough and independent review of the record, we cannot say that the jury lost its way in finding Mr. Slevin guilty of two counts of domestic violence. The victim‘s version of events was not directly contradicted and, in fact, police were able to corroborate various parts of her story. The victim had visible injuries, the premises looked as she described them, and the police found a knife in the yard, an area where the victim suggested that police should look. There was no evidence to support that anyone other than Mr. Slevin was the aggressor, nor was there any evidence that anyone other than Mr. Slevin caused the victim‘s injuries. We are not persuaded that the jury‘s verdict or its credibility determinations are unreasonable in light of the evidence presented. Thus, we overrule Mr. Slevin‘s fifth assignment of error.
III.
{¶25} In light of the foregoing, we sustain Mr. Slevin‘s first, third, and fourth assignments of error, overrule his fifth and sixth assignments of error, and do not reach the merits of his second assignment of error. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in pаrt, and this matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
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
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR