State v. Simon

[Cite as State v. Simon, 2021-Ohio-2738.]

COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Craig R. Baldwin, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 21CA000003
JEREMY C. SIMON :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge
Municipal Court, Case No. 20CRB00964

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 9, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM H. FERGUSON FREDERICK A. SEALOVER
Cambridge Law Director Box 2910
BY: MYRA SCHEURER Zanesville OH 43702
Assistant Law Director
150 Highland Avenue
Suite 2
Cambridge, OH 43725
Guernsey County, Case No. 21CA000003 2

Gwin, J.,

{¶1} Defendant-appellant Jeremy C. Simon [“Jeremy”] appeals his conviction

and sentence after a bench trial in the Cambridge Municipal Court, Guernsey County,

Ohio.

Facts and Procedural History

{¶2} Elizabeth K. Simon is the mother of Jeremy. The pair live in Mrs. Simon’s

home. On November 18, 2020 Mrs. Simon called her older son Rocky to come to her

house to talk with his half-brother Jeremy because she and Jeremy had gotten into an

argument. Rocky was at work so he called the Cambridge Police Department to request

a well-being check. T. 17-18; 34. Mrs. Simon testified that, “I was at the bottom of the

steps. He [Jeremy] came out of his room. There was a glass lamp about this high and he

picked it up, and I knew he was going to throw it or smash it so I left. I knew that -- I could

hear it breaking, but I didn't know where. And I left." T. at 17. On cross-examination, Mrs.

Simon explained that from the top of the staircase one must go three steps to a landing,

turn right, and, "probably a dozen steps after that," to get to the bottom. T. at 23.

{¶3} The following day Sergeant Fred Wagner of the Cambridge Police

Department responded to a dispatch at Mrs. Simon’s home for a report that Jeremy was

attempting to break down the door. T. at 30. Over defense counsel’s objection, Sergeant

Wagner testified that the previous day, Mrs. Simon had kicked Jeremy out of her house

for stealing items from the home. T. at 31-33. Jeremy had been sending threatening

phone messages to his mother. Id. Sergeant Warner testified that, “Mrs. Simon, advised

me that the previous night Jeremy had gotten mad at her, thrown a lamp at her, and she

had stated that if the lamp would have hit her, she -- it would have killed her.” T. at 32.
Guernsey County, Case No. 21CA000003 3

{¶4} At the conclusion of the evidence, Jeremy was found guilty of Domestic

Violence. At a sentencing hearing, held immediately after the trial announced its verdict,

Jeremy was sentenced to 180 days of local incarceration, with 175 of those days

suspended and credit for the time that he had already served in the case. The trial court

ordered Jeremy be placed on probation for 12 months with specific orders, and imposed

court costs.

Assignments of Error

{¶5} Jeremy raises two Assignments of Error,

{¶6} “I. THE TRIAL COURT ERRED BY PERMITTING THE ADMISSION OF

CUMULATIVE AND HEARSAY EVIDENCE OVER THE DEFENDANT-APPELLANT'S

OBJECTION AT TRIAL.

{¶7} “II. THE TRIAL COURT ERRED BY FINDING THE DEFENDANT-

APPELLANT GUILTY AT TRIAL AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCED PRESENTED.

I.

{¶8} In his First Assignment of Error, Jeremy contends that testimony by

Sergeant Wagner concerning Mrs. Simon’s statements to him the day following the

incident were both cumulative and inadmissible as hearsay.

Standard of Review

{¶9} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). “However, we review de novo evidentiary rulings that implicate the
Guernsey County, Case No. 21CA000003 4

Confrontation Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).”

State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

Issue for Appellate Review: Whether the trial court violated Jeremy’s right to

confrontation by allowing the state to introduce Mrs. Simon’s statements made to

Sergeant Wagner the day following the incident.

{¶10} The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.”

{¶11} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177

(2004), the Supreme Court of the United States held that out-of-court statements that are

testimonial are barred, under the Confrontation Clause, unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine the witness, regardless of

whether the statements are deemed reliable by the trial court. The Court defined these

“testimonial” statements to include “ex parte in-court testimony or its functional equivalent-

that is, material such as affidavits, custodial examinations, prior testimony that the

defendant was unable to cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used “prosecutorially” and “extrajudicial statements * * *

contained in formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions,” and “statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.” 541 U.S. at 51-52.

{¶12} Thus, as to “testimonial evidence,” “the Sixth Amendment demands what

the common law required: unavailability and a prior opportunity for cross-examination.”
Guernsey County, Case No. 21CA000003 5

541 U.S. at 68. “To trigger a violation of the Confrontation Clause, an admitted statement

must be testimonial in nature, and must be hearsay.” United States v. Deitz, 577 F.3d

672, 683 (6th Cir.2009). A statement is testimonial where a reasonable person would

anticipate that his or her statement would be used “against the accused in investigating

and prosecuting the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).

See also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at

paragraph two of the syllabus.

{¶13} In the case at bar, Crawford does not apply because Mrs. Wagner testified

and was subject to cross-examination concerning her statements to Sergeant Wagner.

T. at 20-21. However, none of the other requirements of Evid. R. 801(D) concerning prior

statements of a witness were met. The state contends that the hearsay statements that

Mrs. Simon made to Sergeant Wagner were admissible as exited utterances pursuant to

Evid. R. 803(2). However, that rule requires that the statement be made “while the

declarant was under the stress of excitement caused by the event or condition.” In the

case at bar, Mrs. Simon returned to her home later in the evening and did not call the

police. She did not speak to the police until the following day.

{¶14} Assuming arguendo the statements made by Mrs. Simon to Sergeant

Wagner were inadmissible hearsay, Mrs. Simon herself testified during the trial that

Jeremy threw a large lamp in her direction. Mrs. Simon testified that for a split second she

was concerned for her safety. T. at 21. She further testified that if the lamp that Jeremy

threw had hit her, “it would have done some damage...” T. at 28. Mrs. Simon testified that

she left her home to avoid injury. Thus, even if we disregard the statements Mrs. Simon

made to Sergeant Wagner, the disputed facts were admitted through Mrs. Simon’s
Guernsey County, Case No. 21CA000003 6

testimony at trial. We note that any error will be deemed harmless if it did not affect the

accused’s “substantial rights.” Before constitutional error can be considered harmless, we

must be able to “declare a belief that it was harmless beyond a reasonable doubt.” United

States v. Chapman, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Where there

is no reasonable possibility that unlawful testimony contributed to a conviction, the error

is harmless and therefore will not be grounds for reversal. State v. Conway, 108 Ohio

St.3d 214, 2006–Ohio–791, 842 N.E.2d 996, ¶ 78, citing Chapman’ State v. Lytle, 48

Ohio St.2d 391, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated in part

on other grounds Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154(1978). See

also, State v. Jones, 135 Ohio St.3d 10, 2012–Ohio–5677, 984 N.E.2d 948, ¶ 177.

{¶15} Nor can it be said that the evidence of Mrs. Simon’s statements to Sergeant

Wagner was unfairly prejudicial to Jeremy. In State v. Crotts, the Ohio Supreme Court

explained,

As a legal term, “prejudice” is simply “[d]amage or detriment to one’s

legal rights or claims.” Black’s Law Dictionary (8th Ed.1999) 1218. Thus, it

is fair to say that all relevant evidence is prejudicial. That is, evidence that

tends to disprove a party’s rendition of the facts necessarily harms that

party’s case. Accordingly, the rules of evidence do not attempt to bar all

prejudicial evidence—to do so would make reaching any result extremely

difficult. Rather, only evidence that is unfairly prejudicial is excludable.

“‘Exclusion on the basis of unfair prejudice involves more than a

balance of mere prejudice. If unfair prejudice simply meant prejudice,

anything adverse to a litigant’s case would be excludable under Rule 403.
Guernsey County, Case No. 21CA000003 7

Emphasis must be placed on the word “unfair.” Unfair prejudice is that

quality of evidence which might result in an improper basis for a jury

decision. Consequently, if the evidence arouses the jury’s emotional

sympathies, evokes a sense of horror, or appeals to an instinct to punish,

the evidence may be unfairly prejudicial. Usually, although not always,

unfairly prejudicial evidence appeals to the jury’s emotions rather than

intellect.’ ” Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172,

743 N.E.2d 890, quoting Weissenberger’s Ohio Evidence (2000) 85–87,

Section 403.3.

104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24. In the case at bar, Mrs.

Simon had already testified to the substance of her statements to Sergeant Wagner. In

State v. Eubank, the Ohio Supreme Court noted,

In examining the record to determine this issue, we may give weight

to the fact that the error occurred in a trial to the court, rather than in a jury

trial. State v. White (1968), 15 Ohio St.2d 146, 151, 239 N.E.2d 65; State

v. Austin (1976), 52 Ohio App.2d 59, 70, 368 N.E.2d 59. Indeed, a judge is

presumed to consider only the relevant, material and competent evidence

in arriving at a judgment, unless the contrary affirmatively appears from the

record. State v. White, supra, 15 Ohio St.2d at page 151, 239 N.E.2d 65.

60 Ohio St.2d 183, 187, 398 N.E.2d 567(1979).

{¶16} We hold that there is no reasonable possibility that the testimony

contributed to Jeremy’s conviction. Jeremy has failed to establish the admission of Mrs.

Simon’s statements made to Sergeant Wagner unfairly prejudiced his substantial rights.
Guernsey County, Case No. 21CA000003 8

{¶17} Having examined the record herein, we conclude that any error in the

admission of Mrs. Simon’s statement to Sergeant Wagner was harmless beyond a

reasonable doubt

{¶18} Jeremy’s First Assignment of Error is overruled.

II.

{¶19} In his Second Assignment of Error, Jeremy contends that there is

insufficient evidence to support his convictions and further his conviction was against the

manifest weight of the evidence.

Standard of Appellate Review– Sufficiency of the Evidence.

{¶20} The Sixth Amendment provides: “In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in

conjunction with the Due Process Clause, requires that each of the material elements of

a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570

U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,

621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a

question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,

2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements

of the charged offense and a review of the state's evidence.” State v. Richardson, 150

Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

{¶21} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
Guernsey County, Case No. 21CA000003 9

684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is 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 proven beyond a reasonable doubt.” Jenks at

paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97

N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess

the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]

would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”

State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at

paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on

sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by

the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,

¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.

Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.

Issue for Appellate Review: Whether, after viewing the evidence in the light most

favorable to the prosecution, the evidence, if believed, would convince the average mind

of Jeremy’s guilt on each element of the crime for which he was convicted beyond a

reasonable doubt.

{¶22} To find Jeremy 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 parent, a foster parent, or a child
Guernsey County, Case No. 21CA000003 10

of the offender, or another person related by consanguinity or affinity to the offender.”

R.C. 2919.25(F)(1)(a)(iii).

{¶23} Jeremy does not dispute that at all relevant times Mrs. Simon was his

mother. Jeremy also agrees that he and his mother were living together at all relevant

times.

{¶24} Mrs. Simon herself testified that Jeremy threw a large lamp in her direction,

she was scared and it would have injured her if it had hit her. She left her home to avoid

injury. T. 20-21; 28.

{¶25} Under R.C. 2923.02, the “attempt” statute,

(A) No person, purposely or knowingly, and when purpose or

knowledge is sufficient culpability for the commission of an offense, shall

engage in conduct that, if successful, would constitute or result in the

offense

***

(B) It is no defense to a charge under this section that, in retrospect,

commission of the offense that was the object of the attempt was either

factually or legally impossible under the attendant circumstances, if that

offense could have been committed had the attendant circumstances been

as the actor believed them to be.

(C) No person who is convicted of committing a specific offense, of

complicity in the commission of an offense, or of conspiracy to commit an

offense shall be convicted of an attempt to commit the same offense in

violation of this section.
Guernsey County, Case No. 21CA000003 11

(D) It is an affirmative defense to a charge under this section that the

actor abandoned the actor’s effort to commit the offense or otherwise

prevented its commission, under circumstances manifesting a complete

and voluntary renunciation of the actor’s criminal purpose.

{¶26} The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059(1976), paragraph one of

the syllabus, overruled in part by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d

1140(1977). See also, State v. Ashbrook, 5th Dist. Stark No. 2004-CA-00109, 2005-

Ohio-740, reversed on other grounds and remanded for re-sentencing pursuant to State

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In re: Ohio Criminal Sentencing Statutes

Cases, 109 Ohio St.3d 313, 2006-Ohio-2109. In defining substantial step, the Woods

Court indicated that the act need not be the last proximate act prior to the commission of

the offense. Woods at 131-32, 357 N.E.2d 1059. However, the act "must be strongly

corroborative of the actor's criminal purpose." Id. at paragraph one of the syllabus. This

test “properly directs attention to overt acts of the defendant which convincingly

demonstrate a firm purpose to commit a crime, while allowing police intervention, based

upon observation of such incriminating conduct, in order to prevent the crime when the

criminal intent becomes apparent.” Woods, supra at 132, 357 N.E.2d at 1063. In other

words, a substantive crime would have been committed had it not been interrupted.

{¶27} R.C. 2923.02(D) provides that: "[i]t is an affirmative defense to a charge

under this section that the actor abandoned his effort to commit the offense or otherwise

prevented its commission, under circumstances manifesting a complete and voluntary
Guernsey County, Case No. 21CA000003 12

renunciation of his criminal purpose." However, the abandonment must be "complete"

and "voluntary" in order to exculpate a defendant. Where one abandons an attempted

crime because he fears detection or realizes that he cannot complete the crime, the

"abandonment" is neither "complete" nor "voluntary.” Woods, supra, 48 Ohio St.2d at

133.

{¶28} Precisely what conduct will be held to be a substantial step must be

determined by evaluating the facts and circumstances of each particular case. State v.

Group, 98 Ohio St.3d 248, 262, 2002-Ohio-7247 at ¶100, 781 N.E.2d 980, 996 (2002).

Neither factual nor legal impossibility is a defense to an attempt charge if the attempted

offense could have been committed “had the attendant circumstances been as the actor

believed them to be.” R.C. 2923.02(B). The intent with which an act is committed may be

inferred from the act itself and the surrounding circumstances, including acts and

statements of a defendant. State v. Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656

N.E.2d 623, 634; State v. Wallen, 21 Ohio App.2d 27, 34, 254 N.E.2d 716, 72 (5th. Dist.

1969).

{¶29} In the case at bar, Jeremy and his mother were arguing. Jeremy picked up

a large lamp and threw it in the direction of his mother. Mrs. Simon admitted that she was

scared “for a split second.” T. at 21. Mrs. Simon further testified that the lamp would have

injured her if it had hit her. T. at 28.

{¶30} 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

Jeremy attempted to cause physical harm to his mother. We hold, therefore, that the

state met its burden of production regarding Domestic Violence and, accordingly, there
Guernsey County, Case No. 21CA000003 13

was sufficient evidence to support Jeremy’s conviction.

Standard of Appellate Review – Manifest Weight.

{¶31} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. 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; State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

“[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).

{¶32} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to
Guernsey County, Case No. 21CA000003 14

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. 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). Thus, an appellate court will leave the issues of weight and credibility of the

evidence to the fact finder, as long as a rational basis exists in the record for its decision.

State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶33} Once the reviewing court finishes its examination, 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.

Issue for Appellate Review: Whether the trier of fact clearly lost his way and created

such a manifest miscarriage of justice that the convictions must be reversed and a new

trial ordered.

{¶34} 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 * * *
Guernsey County, Case No. 21CA000003 15

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, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

{¶35} In the case at bar, the judge heard the witnesses and viewed the evidence.

The judge saw Mrs. Simon subject to cross-examination. Thus, a rational basis exists in

the record for the judge’s decision.

{¶36} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon

the foregoing and the entire record in this matter we find Jeremy’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 before him. The judge heard the

witnesses, evaluated the evidence, and was convinced of Jeremy’s guilt. The judge
Guernsey County, Case No. 21CA000003 16

neither lost his way nor created a miscarriage of justice in convicting Jeremy of Domestic

Violence.

{¶37} 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 for which Jeremy was convicted.

{¶38} Jeremy’s Second Assignment of Error is overruled.

{¶39} The judgment of the Cambridge Municipal Court, Guernsey County, Ohio is

affirmed.

By Gwin, J.,

Baldwin, P.J., and

Delaney, J., concur