STATE OF OHIO, Plаintiff-Appellee, v. TOSHA WOLF, Defendant-Appellant.
CASE NO. CA2012-12-263
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/2/2013
2013-Ohio-5271
CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT Case No. 12CRB01088
Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-appellant
OPINION
PIPER, J.
{¶ 1} Defendant-appellant, Tosha Wolf, appeals her conviction and sentence in the Middletown Municipal Court for assault.
{¶ 2} On February 18, 2012, Wolf went to the Madison Inn in Middletown, Ohio, with her husbаnd, Charles “Buck” Wolf, and several friends. Once there, Wolf and her companions gathered with other friends at the bar. Kelly Little was also a patron at the bar
{¶ 3} On February 22, 2012, Wolf was charged by complaint with assault. Wolf pled not guilty to the charges, and the matter proceeded to a bench trial. During the trial, the state presented testimony from Little and three other bar patrоns, all of whom testified that Wolf struck Little in the face with her beer glass. Wolf presented the testimony of her sister-in-law, Lauren Wolf, who stated that Little grabbed Wolf‘s hair and that the two women fell down five or six stairs, but that Wolf did not take any action that would cause injury to Little.
{¶ 4} The trial court found Wolf guilty of assault in viоlation of
{¶ 5} Assignment of Error No. 1:
{¶ 6} MS. WOLF’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 7} Wolf argues in her first assignment of error that her conviction was against the manifest weight of the evidence.
{¶ 8} A manifest weight challenge examines the inclination of the greater amount of crеdible evidence, offered at a trial, to support one side of the issue rather than the other. State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298.
In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, cоnsiders
the credibility of the witnesses and determines 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. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
{¶ 9} While appellate review includеs the responsibility to consider the credibility of witnesses and the weight given to the evidence, “these issues are primarily matters for the trier of fact to decide since the trier of fact is in the best position to judge the credibility of the witnesses and the weight to be given the evidence.” State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefоre, an appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstancеs to correct a manifest miscarriage of justice, and only when the evidence presented at trial weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶ 10} Wolf was convicted of assault in violation of
{¶ 11} Little testified that she suffered injuries from being struck in the face with a beer glass on the night of the incident, and that Wolf was the one who hit her. Little also testified that she was able to positively identify Wоlf because she “looked right at [Wolf]” on the night she was assaulted.
{¶ 12} At trial, the prosecution also presented the testimony of Lucas Tinch, Josеph Wesselman, and Jacob Hall, all of whom testified that Wolf struck Little in the face with the
{¶ 13} Given the trial court’s guilty verdict, it found the state’s witnesses credible when they identified Wolf as the assailant. As the trial court was in the best position to judge the credibility of the witnesses, we will not question the trial court’s specific finding that the identification of Wolf as the assailant was credible.
{¶ 14} The trial court did not lose its way or create a manifest miscarriage of injustice by finding Wolf guilty of assault. Therefore, Wolf’s conviction is not against the manifest weight of the evidence, and her first assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} THE TRIAL COURT VIOLATED MS. WOLF’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS WHEN IT ORDERED HER TO PAY RESTITUTION FOR AN UNSPECIFIED AMOUNT.
{¶ 17} Appellant argues in her second assignment of error that the trial court erred when it failed to order a specific amount of restitution.
{¶ 18}
{¶ 19} After reviewing the record, the triаl court failed to order a specific restitution amount as required by statute. The trial court ordered that Wolf “comply with all requirements of a presentence investigation to be conducted by the Probation Department of the Middletown Municipal Court.” The state concedеs in its appellate brief that this order does not comply with the requirements of
{¶ 20} Wolf also argues the order of restitution must be reversed because of the trial court‘s failure to determine a speсific amount of restitution. We disagree. In the instance where an order of restitution is made, but no definite sum is included in the order, the trial court is given an opportunity to clarify its order of restitution. Clark, Greene App. No. 97-CA-27; Stevens, Clinton App. No. CA98-01-001. Accordingly, Wolf‘s second assignment of error is sustained in part, and the matter is remanded tо the trial court for the limited purpose of determining the specific amount to be ordered as restitution.
{¶ 21} Judgment is affirmed in part, reversed in part, and the matter is remanded.
HENDRICKSON, P.J., and M. POWELL, J., concur.