State v. Elkins

[Cite as State v. Elkins, 2024-Ohio-1314.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2023-02-001

: OPINION
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:

BILLY J. ELKINS, :

Appellant. :

CRIMINAL APPEAL FROM EATON MUNICIPAL COURT
Case No. CRB2200168

Martin P. Votel, Preble County Prosecuting Attorney, and Kirsten Knight, Assistant
Prosecuting Attorney, for appellee.

Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.

BYRNE, J.

{¶ 1} Billy Elkins appeals from his conviction for domestic violence in the Eaton

Municipal Court. For the reasons described below, we affirm the municipal court's decision.

I. Factual and Procedural Background

{¶ 2} In April 2022, a Camden, Ohio police officer filed a complaint charging Elkins

with domestic violence in violation of R.C. 2919.25(A). The complaint alleged that Elkins
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forcefully grabbed the victim (his wife), leaving a bruise on her right arm.

The matter proceeded to a bench trial. We will summarize the key trial testimony below.

A. State's Case

1. Amanda Elkins' Testimony

{¶ 3} Amanda testified that she lived at 7089 North Main Street ("the home") in

Camden, Ohio with Elkins, her husband. They had been married since 2019.

{¶ 4} On March 31, 2022, Amanda and Elkins were at the home in the early

afternoon hours. Elkins was intoxicated. Amanda and Elkins had been arguing because

she asked him to leave the home. Elkins refused to leave. He began following her around

the home, cursing at her.

{¶ 5} Amanda went to the home's basement to do laundry. Elkins followed her and

continued cursing at her and calling her names. While in the basement, Amanda began

recording Elkins with her phone. He attempted to grab the phone from her and pushed her

backwards, but she was able to catch her balance.

{¶ 6} Amanda then went upstairs and went into the bathroom. Elkins followed her

into the bathroom, which Amanda described as very small. Amanda testified that while in

the bathroom, Elkins grabbed her left arm and pushed her backwards. She fell into the

bathtub. She got up, and Elkins grabbed her by her right hand and pushed her down again.

Again, she got up. In total, Elkins pushed her down into the bathtub three times.

{¶ 7} Amanda stated that she suffered injuries resulting from this incident.

Specifically, she suffered bruising on both arms.

{¶ 8} After the altercation, Amanda called the police, who quickly arrived on scene.

The responding officer took photographs of her arms while on scene. Amanda identified

two photographs, admitted at trial, each depicting one of her arms. The photographs depict

areas of slight redness on the upper side of Amanda's forearms, near her elbow. Amanda

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estimated that these photographs were taken ten minutes after the altercation. Amanda

testified that these areas of redness darkened over time into bruises. The bruises lasted

approximately one month.

2. Lieutenant David Stemp's Testimony

{¶ 9} Lieutenant David Stemp testified that he was an officer of the Camden Police

Department. On March 31, 2022, he responded to the home in response to a 9-1-1 call.

When Lieutenant Stemp arrived on scene, he found Amanda very upset and crying. She

told him that she had been injured. He looked at her injuries and photographed her arms.

B. Defense Case

1. Billy Elkins' Testimony

{¶ 10} Elkins agreed that he and Amanda were arguing over her desire for him to

leave the home and his refusal to leave. He agreed that he followed Amanda around the

basement and continued arguing in the basement, and that he attempted to knock

Amanda's phone from her hand.

{¶ 11} Elkins confirmed that he followed Amanda as she went into the bathroom, but

stated that he simply stood in the doorway. Elkins claimed that Amanda then pushed him

and he pushed her back and she "went back up against the wall."

{¶ 12} Elkins clarified that the only physical contact he initiated was his pushing

Amanda against the wall. "She pushed me, and then I⎯I pushed back * * *. " He denied

that Amanda ever fell into the bathtub or entered the bathtub. And he denied grabbing

Amanda by her arms.

{¶ 13} Elkins agreed he saw redness depicted in the photographs of Amanda's arms,

but explained its presence by stating that Amanda always had "marks" and "bruises," which

were the result of her work.

C. Trial Court Decision
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{¶ 14} At the conclusion of the trial, the municipal court indicated it would take the

matter under advisement and issue a written decision. The court later issued a written

decision finding Elkins guilty and stating the following relevant findings of fact:

The alleged victim testified that she attempted to leave the
bathroom but was stopped by the Defendant who grabbed her
forearms and pushed her three (3) times into the bathtub. Two
(2) pictures, Plaintiff's Exhibit 1 and 2 were offered as evidence
which the alleged victim testified reflected the injuries on her
forearms from being grabbed by the Defendant. The alleged
victim was able to leave the bathroom and call the police.

The Defendant testified that as the alleged victim was
attempting to leave the bathroom, while he was blocking the
doorway, he pushed her against the wall once. The Defendant
testified that the alleged victim never fell into the bathtub. The
Defendant testified that he told the responding Officer that the
alleged victim had hit him, but then admitted during the trial that
statement was false.

It is clear to the Court that both the alleged victim and the
Defendant have embellished their respective stories. The
alleged victim claims to have been pushed into the bathtub three
(3) times, yet her injuries are inconsistent with her testimony as
they are not severe as would be expected. The Defendant
testified that he only pushed the alleged victim up against the
wall as she attempted to exit the bathroom, yet she has red
marks on her arms.

Therefore, the Court finds the Defendant, Billy J. Elkins guilty of
Domestic Violence, a violation of 2919.25(A), a first-degree
misdemeanor. In doing so, the Court focused on the totality of
the circumstances to-wit: the Defendant being intoxicated,
following the victim around the residence in an attempt to
continue with their argument, attempting to knock the victim’s
cell phone from her hand, blocking her in the bathroom, and
most notably that he pushed the victim against the wall as she
attempted to exit the bathroom. The Court finds the victim’s
testimony to be credible as it relates to the Defendant grabbing
her forearms and causing the red marks reflected in the
pictures.

{¶ 15} Following the court's decision but before sentencing, Elkins filed a written

motion for acquittal on the domestic violence charge and asked the court to instead find him

guilty of disorderly conduct, as a lesser-included offense. The court denied Elkins' motion.

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{¶ 16} The court subsequently issued its sentence, consisting of a 90-day

suspended jail sentence, a fine, and court costs. The court placed Elkins on one year of

probation.

{¶ 17} The record also contains the following form, which appears to be signed by

Elkins:

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{¶ 18} Elkins appealed, raising two assignments of error, which we will address in

turn.

II. Law and Analysis

A. Sufficiency of the Evidence

{¶ 19} Elkins' first assignment of error states:

THE TRIAL COURT ERRED BY CONVICTING [ELKINS] OF
DOMESTIC VIOLENCE UNDER R.C. 2919.25(A).

{¶ 20} In his first assignment of error, Elkins argued that the state submitted

insufficient evidence as a matter of law to allow a reasonable factfinder to find him guilty of

the offense of domestic violence. Specifically, Elkins argues that there was insufficient

evidence presented that he knowingly caused physical harm to Amanda because the

evidence presented was that he merely grabbed and pushed Amanda.

{¶ 21} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,

12th Dist. Butler Nos. CA2010-06-150, CA2010-07-163 thru CA2010-07-167, and CA2010-

07-180, 2011-Ohio-3018, ¶ 10. When reviewing the sufficiency of the evidence underlying

a conviction, an appellate court examines the evidence to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205,

¶ 9. Therefore, "[t]he 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.

{¶ 22} The municipal court found Elkins guilty of domestic violence under R.C.

2919.25(A), which provides, "No person shall knowingly cause or attempt to cause physical

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harm to a family or household member."

{¶ 23} Elkins does not dispute that Amanda was a family or household member. We

therefore confine our review to his argument that the state presented evidence insufficient

to establish that he had knowledge of causing or attempting to cause physical harm to

Amanda.

{¶ 24} Regarding the mental state of "knowingly," the Revised Code provides that,

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.

R.C. 2901.22(B). Stated otherwise, to demonstrate knowledge, the evidence must show

that the defendant was "subjectively aware that a specified result is probable." State v.

Berry, 12th Dist. Warren No. CA2006-11-133, 2007-Ohio-7082, ¶ 12. That is, it is the

defendant's mind and perception that are measured, not an objective reasonable

expectation. Id. "This flows from the theme in Ohio law in which a person is presumed to

intend the probable consequences of his voluntary acts." Id.

{¶ 25} In this case, the "specified result" the state must have demonstrated that

Elkins had knowledge of was "physical harm." As used in the Revised Code, "physical harm

to persons" means "any injury, illness, or other physiological impairment, regardless of its

gravity or duration." R.C. 2901.01(A)(3).

{¶ 26} Amanda testified that Elkins grabbed her left arm and her right hand and

pushed her down three times, causing her to fall into the bathtub each time. She stated

that she suffered injuries from this contact with Elkins and identified those injuries as the

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red marks on her arms, which were depicted in the state's photographs. Amanda stated

that the red marks eventually darkened and bruised and took approximately one month to

fade.

{¶ 27} In addition, the court heard testimony that Elkins was acting belligerently

before the physical altercation, cursing his wife and calling her names. The court also heard

that he attempted to physically knock a phone out of Amanda's hands.

{¶ 28} The court stated it found some of Amanda's testimony to be "embellished,"

including her testimony that Elkins pushed her into the bathtub three times. However, the

court concluded that Elkins did push Amanda against the wall and specifically found

Amanda's testimony to be credible "as it relates to [Elkins] grabbing [Amanda's] forearms

and causing the red marks reflected in the pictures." The court had evidence before it that

Elkins grabbed Amanda with sufficient force to leave visible marks on her arms, and which

were significant enough to bruise. The evidence suggested that Elkins grabbed and pushed

Amanda when he was intoxicated, and in an agitated state, which had been ongoing for

some time. Under these circumstances, the evidence indicated that Elkins would be

subjectively aware that if he grabbed and pushed Amanda with such force, his actions would

probably result in injury, including potentially bruising to Amanda's arms. Redness and

bruising resulting from a grab is sufficient to demonstrate physical harm for purposes of

R.C. 2901.01(A)(3). State v. Torman, 3d Dist. Putnam No. 12-15-10, 2016-Ohio-748, ¶ 31-

32 (physical harm found where defendant grabbed and squeezed the victim's jaw, resulting

in "a slight red mark" and "a little bruising"); State v. Reese, 8th Dist. Cuyahoga No. 85902,

2005-Ohio-5724, ¶ 12 ("Bruising constitutes 'physical harm'"). See State v. Ford, 6th Dist.

Lucas Nos. {48}L-20-1054 and {48}L-20-1112, 2021-Ohio-3058, ¶ 47. Elkins' sufficiency

argument is without merit.

{¶ 29} Elkins alternatively contends that if the evidence was insufficient to find him

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guilty of domestic violence, then the court erred by not finding him guilty of the lesser-

included offense of disorderly conduct, as he had requested post-trial.1 However, because

we have found that the evidence was sufficient to find Elkins guilty of domestic violence,

Elkins' disorderly conduct argument is moot.

{¶ 30} We overrule Elkins' first assignment of error.

B. Constitutionality of 18 U.S.C. 922(g)(9)

{¶ 31} Elkins second assignment of error states:

THE BRADY FIREARM DISQUALIFICATION IS
UNCONSTITUTIONAL AS APPLIED HERE.

{¶ 32} Elkins asks this court to find that a federal statute, 18 U.S.C. 922(g)(9),

unconstitutionally infringes upon his constitutional rights under the Second and the

Fourteenth Amendments to the United States Constitution. The statute states:

It shall be unlawful for any person * * * who has been convicted in any court
of a misdemeanor crime of domestic violence * * * to ship or transport in
interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce.

Elkins argues that this federal statute unconstitutionally burdens his right to own and

possess firearms because the statute is presumptively invalid under the United States

Supreme Court's current firearms jurisprudence. Elkins primarily rests this argument on

New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 24, 142 S.Ct. 2111 (2022),

in which the United States Supreme Court held that, "[w]hen the Second Amendment's plain

text covers an individual's conduct, the Constitution presumptively protects that conduct.

The government must then justify its regulation by demonstrating that it is consistent with

the Nation's historical tradition of firearm regulation." Id. at 24. Elkins argues that the state

has failed to overcome the presumption referenced in Bruen with respect to 18 U.S.C.

1. Elkins did not assign a separate error concerning this argument.
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922(g)(9).

{¶ 33} Elkins characterizes his argument as an as-applied challenge to the

constitutionality of the federal statute. In an as-applied challenge, the challenger contends

that application of the statute in the particular context in which he has acted, or in which he

proposes to act, is unconstitutional. State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608,

¶ 16. An as-applied challenge contends that the statute is unconstitutional as applied to the

challenger's activity, even though the statute may be capable of valid application to others.

State v. Worst, 12th Dist. Butler No. CA2004-10-270, 2005-Ohio-6550, ¶ 42. Thus, an as-

applied challenge focuses on the particular application of the statute. Carrick at ¶ 16.

{¶ 34} However, prior to considering Elkins' argument, we must note that before the

trial court, Elkins only referenced 18 U.S.C. 922(g)(9) once, without citation, when his

counsel wrote in his motion for acquittal that "the conviction of the lesser offense [of

disorderly conduct] would not constitute a Brady disqualification of Elkins' gun rights." But

Elkins only made this statement regarding the law as a matter of fact; Elkins failed to object

in any way or to make any argument on constitutional or any other grounds regarding 18

U.S.C. 922(g)(9) before the trial court. It is well established that "the constitutionality of a

statute must generally be raised at the first opportunity and, in a criminal prosecution, this

means in the trial court." State v. Awan, 22 Ohio St.3d 120, 122 (1986). Therefore, an

appellant's "'[f]ailure to raise the issue of the constitutionality of a statute or its application

at the trial court level generally constitutes waiver of that issue and need not be heard for

the first time on appeal.'" State v. Myers, 12th Dist. Madison No. CA2012-12-027, 2014-

Ohio-3384, ¶ 12, quoting State v. Golden, 10th Dist. Franklin No. 13AP-927, 2014-Ohio-

2148, ¶ 11. Accord Awan at 122.

{¶ 35} However, "[t]he waiver doctrine stated in Awan is discretionary, and an

appellate court may review claims of defects affecting substantial rights for plain error,

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despite an appellant's failure to bring such claims to the attention of the trial court." State

v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, ¶ 70, citing In re M.D.,

38 Ohio St.3d 149 (1988); Crim.R. 52(B). In Fuell we explained:

"Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
court." Crim.R. 52(B). Crim.R. 52(B) places three limitations on
a reviewing court's decision to correct an error not raised before
the trial court. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
First, an error, "i.e., a deviation from a legal rule," must have
occurred. Id., citing State v. Hill, 92 Ohio St.3d 191, 200 (2001),
in turn citing United States v. Olano, 507 U.S. 725, 732, 113
S.Ct. 1770 (1993). Second, the error complained of must be
plain, i.e., it must be "an 'obvious' defect in the * * *
proceedings." Id., quoting State v. Sanders, 92 Ohio St.3d 245,
257 (2001), in turn citing State v. Keith, 79 Ohio St.3d 514, 518
(1997). Third, the error must have affected "substantial rights."
State v. Martin,154 Ohio St.3d 513, 2018-Ohio-3226, ¶ 28.

As just stated, plain error must be "plain." Barnes at 28 ("The
lack of a definitive pronouncement from this court and the
disagreement among the lower courts preclude us from finding
plain error"). "[I]f a forfeited error is not plain, a reviewing court
need not examine whether the defect affects a defendant's
substantial rights; the lack of a 'plain' error within the meaning
of Crim.R. 52(B) ends the inquiry and prevents recognition of
the defect." Id. In Barnes, the Ohio Supreme Court held that a
court of appeals erred when it applied plain error analysis when
the putative error was not actually "plain." Id.

Fuell at ¶ 70-71.

{¶ 36} Elkins has not demonstrated plain error on the part of the trial court in

conjunction with the alleged "application" of 18 U.S.C. 922(g)(9). While Elkins argues that

18 U.S.C. 922(g)(9) is unconstitutional, the trial court in this case did not bar Elkins from

possessing or owning firearms pursuant to 18 U.S.C. 922(g)(9) and did not otherwise

impose any firearms prohibition associated with 18 U.SC. 922(g)(9). At most, the trial court

followed the requirements of R.C. 2943.033, which provides that prior to accepting a guilty

plea or plea of no contest to a misdemeanor offense of violence, the court shall inform the

defendant personally or in writing that under 18 U.S.C. 922(g)(9) "it may be unlawful for the

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person to ship, transport, purchase, or possess a firearm or ammunition as a result of any

conviction for a misdemeanor offense of violence." (Emphasis added.) R.C. 2943.033(C).

That is, the purpose of the form is to inform the defendant of the potential effect of 18 U.S.C.

922(g)(9) if the defendant enters a plea of guilty or no contest to a misdemeanor offense of

violence.2

{¶ 37} Elkins does not argue that the court violated his constitutional rights by

providing him with this notice. The notice was an accurate statement of the law at the time

it was provided to him, as 18 U.S.C. 922(g)(9) had not then been found unconstitutional,

and upon our review has still not been held unconstitutional by any court. And our record

does not indicate one way or the other whether Elkins has had any rights deprived based

on the application of 18 U.S.C. 922(g)(9) to his individual case. Again, all the municipal

court did in this case was provide the notice; the court did not actually apply 18 U.S.C.

922(g)(9) or impose any restriction on Elkins pursuant to that statute.

{¶ 38} In essence, Elkins is asking this court for a prospective ruling that if 18 U.S.C.

922(g)(9) is applied to him in the future, as a result of this conviction, and if that application

results in a deprivation of his constitutional rights, that such action will be unconstitutional

as-applied. But because there are no facts that suggest 18 U.S.C. 922(g)(9) has been

applied to him, this issue it not ripe for appellate review in the context of this direct appeal

from Elkins' conviction. See State v. Nutter, 12th Dist. Brown No. CA2008-10-009, 2009-

Ohio-2964, ¶ 12 ("Such events have not occurred, and might not occur. As a result, we find

appellant's arguments as to this issue are not ripe for review at this time"). This is

particularly true here where Elkins made no argument whatsoever regarding the

constitutionality of 18 U.S.C. 922(g)(9) before the trial court. Perhaps Elkins could pursue

2. We note that Elkins did not enter a plea of guilty or no contest in this case.
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his arguments regarding the constitutionality of 18 U.S.C. 922(g)(9) in some other

proceeding, but he did not do so in this case. In these circumstances we find Elkins waived

his constitutional arguments and we do not find plain error. See United States v. Freeman,

5th Cir. No. 23-10647, 2024 WL 885124 (Mar. 1, 2024) (finding defendant waived his

argument that 18 U.S.C. 922[g][1] is unconstitutional pursuant to Bruen by failing to raise

that argument before the trial court, and declining to find plain error).

{¶ 39} We overrule Elkins' second assignment of error.

{¶ 40} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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