State v. Gorbe

[Cite as State v. Gorbe, 2017-Ohio-4210.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 15CA0067-M

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
M.G. COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 15CR0010

DECISION AND JOURNAL ENTRY

Dated: June 12, 2017

HENSAL, Presiding Judge.

{¶1} Defendant-Appellant, M.G., appeals his conviction for domestic violence from

the Medina County Court of Common Pleas. For the following reasons, this Court affirms.

I.

{¶2} This appeal stems from a domestic violence case with heavily disputed facts.

There is no dispute, however, that M.G. (“Husband”) and K.G. (“Wife”) were married at all

relevant times, that Wife was pregnant, and that Husband knew Wife was pregnant.

{¶3} According to Wife, she and Husband had a physical fight the day before

Thanksgiving. The next day, the fighting continued. Wife testified that Husband shoved her and

bent her leg over the back of a couch before she left for work. After working her shift at a

hospital, Wife returned to their apartment. Upon arriving home, Wife noticed that the computer

was open and that the search history contained visits to dating websites. Upset by what she

found, Wife got into her car with the intention of driving to her parents’ house. Husband arrived
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home as Wife was in her car preparing to leave. He forced her car window down, grabbed her

keys from the ignition, and convinced her to come inside to talk about it.

{¶4} After entering the apartment, Husband handed Wife his cell phone and invited her

to search through it. Wife observed that the only messages contained in his phone were from

herself and from Husband’s mother. As she was holding the phone, however, a text message

came through from another woman. Wife called the number, and Husband immediately tried to

take his phone back from her. Wife testified that Husband then dragged her onto the floor and

sat on her pelvic region as he struggled to take his phone away from her. After she let go of the

phone, Wife swung at him, striking his nose. Wife then got up to try to leave, but Husband

knocked her back down, held her by her hair, and smacked her several times. He then began

dragging her down the hallway toward their bedroom.

{¶5} As Husband was dragging Wife toward the bedroom, Wife grabbed a lamp cord

and swung the lamp at Husband’s back, causing parts of the lamp to shatter. Once in the

bedroom, Husband told Wife he was going to kill her and choked her three times, causing her to

lose consciousness for a short period of time. When Wife awoke, she called 911 and the

violence ceased.

{¶6} Husband’s version of the events is drastically different. According to Husband,

he and Wife argued the day before Thanksgiving, but it never became physical. He testified that

they had sex the following morning, and that Wife left for work shortly thereafter. He further

testified that when he arrived home that evening, Wife was already inside of the apartment.

When he entered, Wife approached him as if coming to give him a hug, but then punched him in

the nose and accused him of cheating. He called her a name and then went to their bedroom to

change his clothes. When he emerged from the bedroom, he saw Wife on his phone and tried to
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take it away from her. He testified that she started swinging at him, so he grabbed her arms.

After Wife bit his hand, he released her, but she started swinging at him again. At one point,

Husband grabbed Wife’s wrists, and they both fell over the couch onto the ground, at which

point he held her down to stop her from hitting him. He then picked her up, walked her to the

bedroom, told her to “cool off[,]” and exited the bedroom. Wife followed him out of the

bedroom, picked up a lamp, and smashed it over the back of his neck. He then picked her up

again and took her back to the bedroom. Wife called the police shortly thereafter.

{¶7} Two police officers responded to the scene. One officer testified that he found

Wife in the bedroom crying and violently shaking, and that he observed red marks on her body.

He testified that Husband told him that there had been a fight about a dating website and that

Wife swung at him. When he asked Husband if he had ever threatened to kill Wife or their

unborn child, Husband paused and then responded: “Not today, but I did yesterday when we

were arguing.”

{¶8} The other officer testified that Husband informed him that he had a mental

condition and that he had not been taking his medication regularly. During his direct

examination, Husband described his mental condition as having mood swings. That officer

further testified that he observed red marks around Wife’s chest and neck that were consistent

with being choked. Both officers testified that although pictures were taken of Wife’s injuries,

those pictures were of ill quality and did not accurately reflect the extent of the injuries that they

observed in person.

{¶9} The officers arrested Husband, who was subsequently charged with one count of

domestic violence under Revised Code Section 2919.25(A). Husband pleaded not guilty, and the

case proceeded to a jury trial. The jury returned a verdict of guilty, and the trial court sentenced
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Husband to a nine-month prison term. Husband now appeals, raising three assignments of error

for our review. For ease of consideration, we will address his assignments of error out of order.

II.

ASSIGNMENT OF ERROR I

DID THE PROSECUTOR’S CLOSING ARGUMENT RISE TO THE LEVEL
OF PROSECUTORIAL MISCONDUCT THEREBY DEPRIVING [M.G.] OF
HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF HIS 5TH, 6TH, AND
14TH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

{¶10} In his first assignment of error, Husband argues that the prosecutor’s comments

during closing argument deprived him of a fair trial. More specifically, Husband argues that the

prosecutor engaged in prosecutorial misconduct by commenting on Husband’s lack of

credibility. He also argues that the prosecutor impermissibly bolstered the credibility of the

State’s witnesses.

{¶11} Husband concedes that, because his counsel did not object to the prosecutor’s

allegedly improper statements at trial, he is limited to arguing plain error on appeal. Crim.R.

52(B) (“Plain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.”); State v. Veal, 9th Dist. Summit No. 26005, 2012-Ohio-

3555, ¶ 18 (“[W]hen the defendant fails to object to the purported acts of prosecutorial

misconduct, he limits appellate review to that of plain error.”). “As notice of plain error is to be

taken with utmost caution and only to prevent a manifest miscarriage of justice, the decision of a

trial court will not be reversed due to plain error unless the defendant has established that the

outcome of the trial clearly would have been different but for the alleged error.” Id.

{¶12} “To evaluate a claim of prosecutorial misconduct in closing argument, this Court

first decides whether the prosecutor’s remarks were improper and, if so, whether the remarks
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prejudicially affected the defendant’s substantial rights.” State v. Kirby, 9th Dist. Summit No.

23814, 2008-Ohio-3107, ¶ 23. In this regard, we “consider the trial record as a whole to

determine whether [a defendant] received a fair trial rather than focus on the culpability of the

prosecutor.” Id.

{¶13} As this Court has stated, “[d]uring closing argument, a prosecutor may not

express his personal belief or opinion as to the credibility of a witness. Likewise, the prosecutor

may not express his opinion as to the guilt of the defendant.” Id. (Internal citation omitted.) “A

prosecutor, however, is permitted to comment freely on what the evidence has shown and what

reasonable inferences may be drawn therefrom.” (Internal quotations and citations omitted.)

State v. Colvin, 9th Dist. Summit No. 26063, 2012-Ohio-4914, ¶ 23.

{¶14} Husband argues that the following comments made by the prosecutor regarding

Husband’s lack of credibility amounted to prosecutorial misconduct: (1) “That’s his story after

he hears all of the evidence.”; (2) “so now he has to come up with a story and Ladies and

Gentlemen, sometimes when you’ve got to come up with a story it’s like fitting a square peg in a

round hole”; (3) “Apply the truthfulness that you do in your daily lives. You wouldn’t buy that

[story] in your daily lives, Ladies and Gentleman, I suggest you don’t have to.”; (4) “I’m not so

sure, Ladies and Gentleman, the State is arguing, that’s not very believable.”; (5) “It’s tough to

keep your story straight.”; (6) “the little mouse trap he got himself in.”; (7) “I suggest to you

Ladies and Gentlemen, that doesn’t make sense. That is not reasonable testimony. It’s not often

you get someone to be under oath right here in front of you and catch you in those type of

things”; (8) “You have to ask yourself are you willing to accept those two stories that he told

you? Do you think those were credible and reasonable? * * * We suggest they are not

reasonable and reliable.”; and (9) “We’re not trying to get down and dirty here.”
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{¶15} Additionally, Husband argues that the prosecutor impermissibly bolstered the

State’s witnesses when he made the following statements: (1) “When people tell you things like

that that don’t serve them, I suggest to you, Ladies and Gentleman of the jury, that’s her

rendition of the truth * * *.”; (2) “Now, listen to me, you saw the woman here. You saw how

she was. Is she an academy award winning actress? How could she put on this performance

with the police? Both those police, and these aren’t guys who just got out of the police academy.

These are guys that have 15 and 25 years of experience.”; and (3) “Yeah, there are red marks

there. Of course there’s red marks there and by the way I’ve been doing this for 25 or 15 years

and I’m under oath here and I’m telling you I saw the red marks * * * and those officers under

oath were telling you that’s what they saw, right, on this woman.”

{¶16} Initially, we note that Husband’s merit brief offers little explanation as to how

these comments amounted to prosecutorial misconduct, and ignores the context in which many

of the comments were made. For example, when discussing the presence of red marks on Wife’s

body, the prosecutor was summarizing the testimony of the police officers, not offering his own

opinion as to whether Wife had red marks on her body. Additionally, the prosecutor’s comment

that the State was “not trying to get down and dirty” referred to the fact that Husband’s counsel,

not the prosecutor, brought up the issue of Husband and Wife’s pending divorce case.

{¶17} Notwithstanding, assuming without deciding that the prosecutor’s comments were

improper, Husband has failed to demonstrate that but for the prosecutor’s comments, the result of

the trial clearly would have been different. Crim.R. 52(B); Veal, 9th Dist. Summit No. 26005,

2012-Ohio-3555, at ¶ 18. Considering the trial record as a whole, including the testimony of

Wife – which was corroborated, in part, by the testimony of two responding police officers – we
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cannot say that the prosecutor’s comments deprived Husband of a fair trial. Husband’s first

assignment of error is overruled.

ASSIGNMENT OF ERROR III

[M.G.]’S CONVICTION IS BASED ON INSUFFICIENT EVIDENCE.

{¶18} In his third assignment of error, Husband argues that the State failed to present

sufficient evidence to support his conviction for domestic violence. Whether a conviction is

supported by sufficient evidence is a question of law, which we review de novo. State v.

Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view the

evidence in the light most favorable to the prosecution:

An appellate 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 a 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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶19} Revised Code Section 2919.25(A), under which Husband was convicted, provides

that “[n]o person shall knowingly cause or attempt to cause physical harm to a family or

household member.” It further provides that “if the offender knew that the victim of the

violation was pregnant at the time of the violation, a violation of division (A) * * * of this section

is a felony of the fifth degree, and the court shall impose a mandatory prison term * * *.” R.C.

2919.25(D)(5). “Physical harm * * *” is defined as “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).

{¶20} As previously noted, there is no dispute that Husband and Wife were married, that

Wife was pregnant, and that Husband knew Wife was pregnant. Thus, the only issue that
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remained was whether Husband “knowingly cause[d] or attempt[ed] to cause physical harm to

[Wife].” R.C. 2919.25(A).

{¶21} The State presented evidence from Wife that, if believed, indicated that Husband

dragged Wife through their apartment, struck her several times, and choked her. The State

presented corroborating evidence from two police officers who testified that they observed red

marks on Wife’s body that were consistent with her version of the events. Viewing this evidence

in a light most favorable to the State, we hold that a rational trier of fact could have found the

essential elements of domestic violence proven beyond a reasonable doubt. Jenks at paragraph

two of the syllabus. Husband’s third assignment of error is overruled.

ASSIGNMENT OF ERROR II

[M.G.]’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

{¶22} In his second assignment of error, Husband argues that his conviction was against

the manifest weight of the evidence. If a defendant asserts that a conviction is against the

manifest weight of the evidence,

an appellate court must 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).

{¶23} Weight of the evidence pertains to the greater amount of credible evidence

produced in a trial to support one side over the other side. Thompkins, 78 Ohio St.3d at 387. An

appellate court should only exercise its power to reverse a judgment as against the manifest

weight of the evidence in exceptional cases. State v. Carson, 9th Dist. Summit No. 26900, 2013-

Ohio-5785, ¶ 32, citing Otten at 340.
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{¶24} The crux of Husband’s argument is that the State presented multiple theories

throughout trial, and that Wife’s testimony was not credible. He also argues that the State failed

to present medical records corroborating Wife’s alleged injuries, that the police officers’

testimony contradicted one another, and that the pictures of Wife’s injuries introduced at trial did

not reflect the injuries she complained of.

{¶25} As an initial matter, we note that the State was not required to present medical

records, and that the police officers explained that the pictures of Wife’s injuries were of ill

quality and did not accurately reflect the injuries they observed in person. Further, as this Court

has stated, “[c]redibility determinations are primarily within the province of the trier of fact[,]”

who is “‘free to believe all, part, or none of the testimony of each witness.’” State v. Just, 9th

Dist. Wayne No. 12CA0002, 2012–Ohio–4094, ¶ 42, citing State v. Violett, 9th Dist. Medina No.

11CA0106–M, 2012–Ohio–2685, ¶ 11; State v. Cross, 9th Dist. Summit No. 25487, 2011–Ohio–

3250, ¶ 35, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004–Ohio–7184, ¶ 35.

{¶26} Here, the jury reviewed all of the evidence and assessed the credibility of the

witnesses, including Wife, Husband, Husband’s character witness, and the two police officers.

Having reviewed the record, we cannot say that the jury clearly lost its way when it accepted the

State’s version of the events. See State v. Knicely, 9th Dist. Wayne No. 10CA0029, 2011-Ohio-

4879, ¶ 20 (“[T]he fact that the jury chose to believe the State’s version of the events is not a

basis for reversal.”). Husband’s conviction, therefore, is not against the manifest weight of the

evidence. Husband’s second assignment of error is overruled.

III.

{¶27} Husband’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.
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Judgment affirmed.

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 Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

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. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL
FOR THE COURT

CARR, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

RUSSELL A. BUZZELLI, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and JAMES M. PRICE, Assistant
Prosecuting Attorney, for Appellee.