[Cite as State v. Morris, 2017-Ohio-1514.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0026
- vs - :
ROBERT J. MORRIS, II, :
Defendant-Appellant. :
Criminal Appeal from the Warren Municipal Court, Case No. 2015 CRB 002518.
Judgment: Affirmed.
Gregory V. Hicks, Warren City Law Director, and David G. Lake, Assistant Law
Director, 391 Mahoning Avenue, N.W., Warren, OH 44483 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C. Kent, OH 44240 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Robert J. Morris, II, appeals his conviction for misdemeanor
domestic violence as being against the manifest weight of the evidence. We affirm.
{¶2} Appellant was charged with one count of domestic violence, a first-degree
misdemeanor in violation of R.C. 2919.25(A). The complaint alleges that he knowingly
caused, or attempted to cause, physical harm to his mother, Mary Lee Morris. A bench
trial ensued. Appellant’s mother, appellant, and Sergeant Peterson testified. Appellant
was found guilty and sentenced.
{¶3} Appellant raises one assignment of error:
{¶4} “The appellant’s conviction is against the manifest weight of the evidence.”
{¶5} A transcript of the trial cannot be provided because the trial court’s
electronic taping system malfunctioned. The record, therefore, consists of a statement
of the evidence submitted at trial as approved by the trial court in accordance with
App.R. 9(C). The statement of evidence provides:
{¶6} “Mary Morris, the alleged victim and mother of Defendant, was the first
witness to testify on behalf of the State of Ohio. She stated that the incident which gave
rise to the charges occurred at her home in Warren Township, Trumbull County, State
of Ohio. On September 25, 2015, at around 2:00 AM, she was watching television in
her home. The Defendant then came into the home and began discussing a dog owned
by the witness which had fatally injured a cat that also lived on the property. The
Defendant resides in a trailer located on the same property as the alleged victim. When
the alleged victim got up and attempted to go into the kitchen, the Defendant hit her in
the head and she fell to the ground. The witness testified that the Defendant hit her with
a ‘heavy hand.’ The witness believed that she had been hit two times. When the
witness tried [to] get up, she fell and struck her nose on the table and it began to bleed.
The witness testified that she began crying and felt like a ‘sissy.’
{¶7} “On cross-examination, the alleged victim, after some hedging, testified
that she did have an infection in her foot that had occasionally caused her to fall. When
confronted with a variety of photographs depicting the victim lying on the ground that
were taken sometime in June and July, she did admit that she had fallen on various
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occasions but could not remember the dates. Ultimately, the Court precluded the
Defendant from continuing to question this witness concerning certain * * * photographs
that were taken months ago in which she had fallen and prohibited the Defendant from
introducing further photographs as they had no bearing in the case at bar. At that
juncture, the Defendant discontinued questioning the witness and the Plaintiff did no
redirect.
{¶8} “The Plaintiff next called Sergeant Daniel Peterson of the Warren
Township Police Department to testify. This witness indicated that on September 25,
2015 at 12:44 AM, he was dispatched to 3341 Palmyra Road in Warren Township. He
identified the Defendant as being at the premises when he arrived. Dispatch had
informed [the] officer that the individual calling the department had indicated she was
being assaulted by her son. When the officer first arrived on the scene, the Defendant
was the first to speak with [him]. The Defendant indicated to the officer that he was
upset because his mother had permitted our dogs to run around the premises
unchained and, as a result, a cat had been killed. The officer then came into contact
with the alleged victim. The officer testified that the victim had marks on her face and
neck and that he saw blood on her. The officer testified that he saw the area of the
house where the alleged incident had occurred and there was blood on the kitchen
table, a burner from the stove on the floor or table, and a broken dish was present. The
officer also indicated that the alleged victim did have an injury to her foot and had a
plastic bag wrapped around it. Over objections, the officer was permitted to testify that
the injuries he observed on the alleged victim were consistent with someone who had
been punched or hit. He also indicated that the Defendant admitted to him that he had
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hit the stove, but denied hitting his mother.
{¶9} “On cross-examination, the officer readily admitted that he was not aware
that the alleged victim had fallen on numerous occasions in the past and did not
consider that as a source of her injuries.
{¶10} “* * *
{¶11} “The Defendant then testified on his own behalf. The Defendant agreed
that he had confronted his mother concerning the situation with dogs and a cat. He also
indicated that he had on numerous occasions in the past requested that his mother
chain up her dogs. He had knowledge that when he had slammed his fist on the stove
a dish had broken. However, he flatly denied hitting or assaulting his mother. He
testified that her injuries were likely the result of numerous falls she experienced due to
a damaged foot. He also indicated that on numerous occasions in the past, when she
had fallen and he tried to help her up, she became very aggressive. He also clarified
that the pictures that he had attempted to employ to impeach his mother and attempted
to introduce into evidence, accurately depicted various occasions where his mother had
fallen and he had found her on the ground. He always attempted to help her get up,
despite the fact that she would sometimes be hostile in that regard.”
{¶12} In claiming that his conviction is against the manifest weight of the
evidence, appellant argues that the trial court erred in believing his mother as opposed
to him. While admitting that he was upset with his mother over the death of the cat,
appellant asserts that the trial court should have believed his testimony that he did not
strike his mother.
{¶13} As part of her trial testimony, appellant’s mother stated that appellant hit
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her on the head with a heavy hand as she was walking to the kitchen, causing her to fall
to the floor. Although, on cross-examination, mother hesitated to admit that she had an
infected foot which has caused her to fall in the past, she did not recant or alter her
testimony that appellant struck her in the head.
{¶14} Appellant notes that his mother said that when she initially tried to get up,
she again fell hitting her nose on a table, causing it to bleed. Appellant maintains that
this testimony supports his assertion that her original fall was due her infected foot, not
from physical contact with him. Although mother did not attribute her second fall to
appellant, she likewise did not attribute it to her injured foot or any other cause. More
importantly, that appellant’s mother fell a second time does not lend any credibility to
appellant’s contention that the first fall was due solely to her injured foot. Furthermore,
even if the evidence were that the second fall was caused by her injured foot, this still
would not render her testimony that appellant’s punch caused the first fall incredulous.
{¶15} Taken as a whole, mother’s testimony did not have any inherent
inconsistencies. Moreover, other evidence supports her version. Sergeant Peterson
testified that appellant admitted to him that he was upset with his mother over the death
of the cat when he confronted her. Appellant also admitted this at the trial. There is,
likewise, no dispute that appellant broke a dish during the confrontation. Last, Sergeant
Peterson testified that appellant’s mother looked like she had just been hit or punched.
{¶16} Appellant also takes issue that his mother’s testimony conflicts with that of
Sergeant Peterson as to when the incident occurred. Sergeant Peterson testified that
he was dispatched to mother’s residence at 12:44 a.m., while she stated that the
confrontation took place around 2:00 a.m. Given that the mother was hit in the head by
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her son, fell to the floor, and then hit her nose on the kitchen table so hard that she bled,
confusion as to the exact time of the incident is understandable. Furthermore, the exact
time of the incident is not crucial.
{¶17} “To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact ‘“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, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983). ‘This Court [is] not in a position to view witnesses
who testified below and observe their demeanor, gestures and voice inflections, and
use those observations in weighing the credibility of the proffered testimony.’ State v.
Long, 127 Ohio App.3d 328, 335, 713 N.E.2d 1 (4th Dist.1998) (citations omitted).
Therefore, in weighing the evidence submitted at a criminal trial, an appellate court must
give substantial deference to the factfinder’s determinations of credibility. State v.
Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, 2011 WL 2976890, ¶30,
citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus.” State v. Thompson, 11th Dist. Trumbull No. 2015-T-0087, 2016-Ohio-7154,
¶7.
{¶18} Appellant has failed to establish that the trial court lost its way in believing
mother’s version over his. Moreover, if believed, mother’s testimony satisfies all
elements of domestic violence. A person is guilty of domestic violence if he knowingly
causes, or attempts to cause, physical harm to a family or household member. R.C.
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2919.25(A).
{¶19} Appellant’s conviction is not against the manifest weight of the evidence.
As such, his sole assignment of error is without merit and the judgment of the Warren
Municipal Court is affirmed.
DIANE V. GRENDELL, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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