[Cite as State v. Wolfe, 2015-Ohio-3455.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2015 AP 0012
JOSHUA WOLFE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the New Philadelphia
Municipal Court, Case No. CRB1401335A-
B
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 25, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DOUGLAS JACKSON NICOLE STEPHAN
Dover Prosecuting Attorney Assistant Public Defender
339 Oxford St. 153 N. Broadway
Dover, OH 44622 New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015 AP 0012 2
Gwin, P.J.
{¶1} Appellant Joshua Wolfe ["Wolfe"] appeals his conviction and sentence for
one count of domestic violence, a misdemeanor of the first degree in violation of R.C.
2903.13(A) after a bench trial in New Philadelphia Municipal Court.
Facts and Procedural History
{¶2} Wolfe and Stephanie Chambers have a child. On November 28, 2014,
Wolfe went to Chambers' home to retrieve clothing for the child. Wolfe testified he had
their son with him and that he was suppose to keep him through the night, as Ms.
Chambers had to work. The couple had been arguing that day.
{¶3} Wolfe went inside while the child remained in the vehicle. While inside
Wolfe took a cell phone from Chambers. Wolfe testified that the phone was on his plan
and he paid for the service. As the couple continued to argue, Wolfe left the house.
Chambers followed Wolfe to his truck. Chambers was attempting to open the door and
remove the child from the vehicle. Wolfe's hand went on Chambers' chest and pushed
her on the ground. He then threatened to punch Chambers. Chambers testified that
Wolfe pushed her out of the way hard enough that she fell on the ground. She then
testified that after he said he was going to punch her she told him to do it and kept
telling him to do it and that he would go to jail and that she knew he would go to jail. Ms.
Chambers agreed that Mr. Wolfe was just trying to leave and once he pushed her out of
the way he closed the door of his truck and then left.
{¶4} Wolfe admitted that he pushed Chambers back out of the way so he could
get the door of the vehicle shut and lock it so he could leave. Wolfe was sitting in the
truck when he pushed Chambers. He was able to get the door shut and locked so he
Tuscarawas County, Case No. 2015 AP 0012 3
could leave. When questioned about the threat of punching, Wolfe testified he told Ms.
Chambers she could make a saint want to punch her in the face because she does not
stop. It just keeps going and going and going. Wolfe testified that Ms. Chambers had
another phone, other than the one he took, and that within minutes of him leaving the
house after the altercation, she began to text him.
{¶5} On November 28, 2014, Wolfe was charged with Domestic Violence, a
violation of Ohio Revised Code 2919.25, and Assault, a violation of Ohio Revised Code
2903.13(A).
{¶6} At the conclusion of the evidence, the court found Wolfe guilty of the
domestic violence charge, and dismissed the assault charge. The Court sentenced
Wolfe to serve 180 days in jail, suspended all 180 days, for a 24-month term of
community control sanctions and to have no contact with Stephanie Chambers.
Assignments of Error
{¶7} Wolfe raises two assignments of error,
{¶8} "I. THE CONVICTION FOR DOMESTIC VIOLENCE, A VIOLATION OF
OHIO REVISED CODE SECTION 2919.25(A), WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶9} "II. II. THE CONVICTION FOR DOMESTIC VIOLENCE IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE."
Analysis
{¶10} Wolfe's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
Tuscarawas County, Case No. 2015 AP 0012 4
{¶11} In his first assignment of error, Wolfe contends his conviction is against
the manifest weight of the evidence produced by the state at trial. In his second
assignment of error, Wolfe challenges the sufficiency of the evidence.
{¶12} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,
2010–Ohio–2720 (5th Dist.), ¶68.
{¶13} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
Tuscarawas County, Case No. 2015 AP 0012 5
{¶14} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
Tuscarawas County, Case No. 2015 AP 0012 6
{¶15} To find Wolfe guilty of domestic violence the trier of fact would have to find
beyond a reasonable doubt that he knowingly caused or attempted to cause physical
harm to a family or household member. R.C. 2919.25(A). Physical harm to persons is
defined as “any injury, illness, or other physiological impairment, regardless of its gravity
or duration.” “Family or household member” includes “A spouse, a person living as a
spouse, or a former spouse of the offender” R.C. 2919.25(F)(1)(a)(i). A “person living as
a spouse” includes “a person who is living or has lived with the offender in a common
law marital relationship, who otherwise is cohabiting with the offender, or who otherwise
has cohabited with the offender within five years prior to the date of the alleged
commission of the act in question.” R.C. 2919.25(F)(2). R.C. 2901.22 Culpable mental
states, provides:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there
is a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
Wolfe does not dispute that at all relevant times Chambers was a family or
household member, or a person living as a spouse.
Tuscarawas County, Case No. 2015 AP 0012 7
{¶16} In the case art bar, Chambers testified that Wolfe pushed her and she fell
to the ground. Chambers further testified that it hurt and that she had marks on her
hands and legs.
{¶17} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Wolfe committed the crime of domestic violence. We hold, therefore, that the state met
its burden of production regarding each element of the crime of domestic violence and,
accordingly, there was sufficient evidence to support Wolfe’s conviction.
{¶18} Wolfe argues that he acted in self-defense. Self-defense is a “confession
and avoidance” affirmative dense in which appellant admits the elements of the crime
but seeks to prove some additional element that absolves him of guilt. State v. White,
4th Dist. Ross No. 97 CA 2282, 1998 WL 2282 (Jan. 14, 1998). The affirmative defense
of self-defense places the burden of proof on a defendant by a preponderance of the
evidence. In re Collier, 5th Dist. Richland No. 01 CA 5, 2001 WL 1011457 (Aug. 30,
2001), citing State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096 (4th
Dist.1992). The proper standard for determining whether a criminal defendant has
successfully raised an affirmative defense is to inquire whether the defendant has
introduced sufficient evidence, which, if believed, would raise a question in the minds of
reasonable persons concerning the existence of the issue. State v. Melchior, 56 Ohio
St.2d 15, 381 N.E.2d 195 (1978), paragraph one of the syllabus.
{¶19} To establish self-defense in the use of non-deadly force, the accused must
show 1) he was not at fault in creating the situation giving rise to the altercation; 2) the
accused had reasonable grounds to believe and an honest belief, even though
Tuscarawas County, Case No. 2015 AP 0012 8
mistaken, that some force was necessary to defend himself against the imminent use of
unlawful force; and 3) the force used was not likely to cause death or great bodily harm.
State v. Hoopingarner, 5th Dist. Tuscarawas No.2010AP 07 00022, 2010–Ohio–6490, ¶
31, citing State v. Vance, 5th Dist. Ashland No.2007–COA–035, 2008–Ohio–4763, ¶ 77
(citations omitted). If any one of these elements is not proven by a preponderance of the
evidence, the theory of self-defense does not apply. State v. Williford, 49 Ohio St.3d
247, 249, 551 N.E.2d 1279 (1990).
{¶20} In the case at bar, the trial court found,
Okay, I think there's been a lot of different stories told here and a lot
of different reasons and a lot of different explanations and I agree with
Miss Stephan that Stephanie's probably not the most credible witness in
the world, but I can't sit here and say, we just had a similar case last week,
very similar. In fact they were fighting over trying to get in the car. There
wasn't a baby in the car but, and I found the defendant not guilty based on
self-defense because I felt like he really had not created the situation at
all, which is one of the elements of self-defense is you cannot have
created the situation, and that isn't the case here. I don't think that's the
case here and I do think that he did shove her and he did threaten her and
so I'm going to find you guilty, Josh, of domestic violence.
You know, there's about a million things you could have done to
avoid this. First of all, I asked you the questions about why you went back
over there because I just, I wanted to know why did you have to go back
Tuscarawas County, Case No. 2015 AP 0012 9
over there? You didn't. You guys were arguing, I'm sure you knew better,
in hindsight.
***
Okay, and yet even though I ordered you not to have any contact
with her in this case as a condition of your bond that you could have went
and sat in jail? You still can't, you just, you know, at some point you got to
just tell yourself it's too crazy, it's not good for the kid. So he needs to
come in for sentencing.
I mean I'm not blind to what's going on here, but you — she's not
the only responsible one as far as creating these situations. There was no
reason for you to go over to that house that day. You didn't need clothes,
you didn't need diapers, you didn't need nothing. You just went over there
to make trouble with her and take her phone and she was just pushing
your buttons, and you guys had the bad idea to bring a baby into the midst
of this craziness.
T. at 29-30.
{¶21} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence, upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.
10, 1982). Accordingly, judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d
Tuscarawas County, Case No. 2015 AP 0012 10
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n
determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132
Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
well established that the trial court is in the best position to determine the credibility of
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing
State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
{¶22} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶23} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Tuscarawas County, Case No. 2015 AP 0012 11
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983).
{¶24} The judge as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the[trier of
fact] may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant's conviction against the manifest weight
or sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999
WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the [trier of fact] need not believe all of a
witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist.
Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67,
197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-
2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Although the evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, supra.
{¶25} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge neither lost his way
nor created a miscarriage of justice in convicting Wolfe of the charges.
{¶26} Based upon the foregoing and the entire record in this matter, we find
Wolfe's conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the judge appears to have fairly and impartially decided the matters
Tuscarawas County, Case No. 2015 AP 0012 12
before him. The judge as a trier of fact can reach different conclusions concerning the
credibility of the testimony of the state’s witnesses and Wolfe. This court will not disturb
the trier of facts finding so long as competent evidence was present to support it. State
v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The judge heard the witnesses,
evaluated the evidence, and was convinced of Wolfe's guilt.
{¶27} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime of domestic violence beyond a reasonable doubt.
{¶28} Wolfe's first and second assignments of error are overruled.
{¶29} For the foregoing reasons, the judgment of the New Philadelphia
Municipal Court, Tuscarawas County, Ohio is affirmed.
By Gwin, P.J.,
Farmer, J., and
Baldwin, J., concur