[Cite as State v. Riter, 2014-Ohio-1465.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2013CA00117
:
ZACHARAY ALLEN RITER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2013CR0305
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 31, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. EARLE E. WISE, JR.
STARK CO. PROSECUTOR 122 Central Plaza, North
RENEE M. WATSON Canton, OH 44702
110 Central Plaza S., Ste. 510
Canton, OH 44702-1413
Stark County, Case No. 2013CA00117 2
Delaney, J.
{¶1} Appellant Zacharay Allen Riter appeals from the judgment entry of
conviction and sentence entered in the Stark County Court of Common Pleas on May
15, 2013. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and Tanya Riter (“Riter”) are married and as of February 17,
2013 were living together in an apartment located at 1447 Rachel Street, Canton, Ohio.
Appellant has a prior domestic violence conviction in Canton Municipal Court case
number 2011-CRB-005126.
{¶3} On February 17, 2013, Riter and appellant spent the day cleaning a new
apartment. They came home to the Rachel Street address and Riter made dinner. The
couple drank some vodka and appellant started playing video games. When a friend of
appellant’s came over, Riter went to bed.
{¶4} Rider awoke shortly after midnight due to noise; appellant’s friend was
leaving. They had finished the bottle of vodka and were highly intoxicated, by Riter’s
account. Riter came out from the bedroom and yelled at appellant, calling him
irresponsible. At trial she testified she was angry because he gave away the dinner she
put aside for herself. The couple argued but it was “not physical.” Both went to bed and
fell asleep.
{¶5} Riter testified she awoke soon after to appellant saying “get off me.” She
said “what are you talking about, I was asleep,” and appellant responded, “oh yeah, you
want to yell at me” and “smacked” her in the face, hard. The strike busted Riter’s mouth
open and it started to bleed. When she started yelling, appellant got up on all fours on
Stark County, Case No. 2013CA00117 3
the bed and punched her repeatedly. He grabbed her hair and pulled some out of her
head, choked her, stood on the bed and stomped on her, and bit her several times.
Riter testified she could not get away and was bleeding from her ears, mouth, and nose.
{¶6} Eventually appellant got up and ran out of the apartment, naked. Riter
locked the door, found a cell phone, and called 911. Police responded and took a
statement from Riter and photographed her injuries. They also bagged into evidence
some hair that had been pulled from her scalp.
{¶7} Riter directed police in the area appellant fled and they observed bare
footprints in the snow. A K-9 officer tracked appellant to a neighboring apartment
building where he was found crouched in a stairwell, still naked. Police handcuffed him
and escorted him back toward his own apartment; as they approached the apartment,
appellant took off running into the apartment and tried to slam the door. He was
subdued again and taken back into custody but police described his demeanor as
extremely belligerent; he was angry and screaming threats and profanity at officers and
Riter.
{¶8} Police observed visible injury to Riter which they photographed. Her t-
shirt was stretched, she had blood on her lip and she had marks and scratches on her;
it was apparent “she had been in a fight.” Appellant had no apparent injuries but
claimed he was the victim.
{¶9} Riter went to the hospital on her own and received two stitches to the
injury to her lip.
Stark County, Case No. 2013CA00117 4
{¶10} On February 29, 2013, Riter obtained a temporary protection order in
Canton Municipal Court. Her developing injuries were photographed again that day by
Canton police.
{¶11} Riter testified appellant continued to contact her despite the T.P.O.; he
has called her many times, sent messages to her through friends, and sent family
members to her house to give her messages.
{¶12} Appellant was the only defense witness at trial. He claimed Riter stole a
gallon bottle of vodka from a drugstore which they both consumed to the point of
intoxication. She went to bed when his friend came over. After the friend left, Riter was
mad because they had finished the bottle of vodka.
{¶13} Appellant then claimed he got into bed with Riter, naked, and approached
her for sex. She said “you’re crazy” and he said he would have sex with the neighbor
girl instead. Riter then started slapping him in the face, hitting him, and biting him
repeatedly. He ran out of the apartment naked, screaming for help, and hid in the
apartment two buildings over waiting for police. When police arrived, they didn’t want to
listen to his story and told him, “This is a felony, bitch. You’re going to jail.” Appellant
further claimed the police continued to struggle with him while he was naked and he
feared for his life.
{¶14} Appellant denied hitting, punching, stomping, or biting Riter on the night of
the incident; he said he only asked her for sex. He readily admitted to violating the
protection order and contacting her many times, on the telephone and through third
parties, because they have learned she is pregnant.
Stark County, Case No. 2013CA00117 5
{¶15} Appellant acknowledged his criminal history includes felony convictions for
burglary and breaking and entering. Appellant testified he received a community control
sanction which he violated and was sent to prison for two years on those offenses.
{¶16} In the instant case appellant was charged by indictment with one count of
felonious assault, a felony of the first degree, pursuant to R.C. 2903.11(A)(1) [serious
physical harm]; one count of domestic violence, a felony of the fourth degree, pursuant
to R.C. 2919.25(A); and one count of violation of temporary protection order, a
misdemeanor of the first degree, pursuant to R.C. 2919.27(A)(1). Appellant entered
pleas of not guilty and waived his right to trial by jury. The case proceeded to bench
trial and appellant was found not guilty of felonious assault but guilty of domestic
violence and violation of a temporary protection order. He was sentenced to a prison
term of 18 months.
{¶17} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶18} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶19} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT
TO THE MAXIMUM TERM OF EIGHTEEN MONTHS FOR A VIOLATION OF OHIO
REVISED CODE SECTION 2919.25(A).”
{¶20} “II. THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO
SUSTAIN THE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
Stark County, Case No. 2013CA00117 6
ANALYSIS
I.
{¶21} In his first assignment of error, appellant argues the record does not
support the trial court’s imposition of a maximum sentence because the victim’s injuries
were not found to constitute serious physical harm; he further impliedly argues he was
punished with a maximum sentence for exercising his right to trial. We disagree.
{¶22} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,
the Ohio Supreme Court established a two-step procedure for reviewing a felony
sentence. The first step is to “examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the first step is
satisfied, the second step requires the trial court's decision be reviewed under an
abuse-of-discretion standard. Id.
{¶23} We first note that subsequent to the Ohio Supreme Court's Foster
decision, “[t]he decision to impose the maximum sentence is simply part of the trial
court's overall discretion in issuing a felony sentence and is no longer tied to mandatory
fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio -
1281, ¶ 14.
{¶24} The trial court noted appellant’s prior felony record at sentencing,
including the fact that appellant had once been granted a term of community control but
it was revoked. The term of 18 months in the instant case is within the statutory range
for a fourth-degree felony offense pursuant to R.C. 2929.14(A)(4). We find the
sentence is in accordance with law.
Stark County, Case No. 2013CA00117 7
{¶25} Further, the sentence does not constitute an abuse of the trial court’s
discretion. On this point, appellant implies he was punished for trying his case, but we
find this argument unsupported by the record. It is axiomatic that a defendant should
never be punished for exercising his right to trial or refusing to enter into a plea
agreement. State v. O'Dell, 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989). The
imposition of a harsher punishment on a defendant for exercising his rights would impair
the constitutional right to a trial by creating a chilling effect upon a defendant's ability to
exercise his constitutional right. State v. Scalf, 126 Ohio App.3d 614, 621, 710 N.E.2d
1206 (8th Dist.1998). Accordingly, a trial court may not augment a sentence because a
defendant chooses to force the government to prove his guilt, “no matter how
overwhelming the evidence of [defendant's] guilt.” Id.
{¶26} The trial court must avoid the appearance of penalizing a defendant for
going to trial. In State v. Morris, 159 Ohio App.3d 775, 2005–Ohio–962, 825 N.E.2d
637 (8th Dist.2005), the court observed, “[If] the court makes statements that ‘give rise
to the inference that [the] defendant may have been punished more severely because of
his assertion of the right to trial by jury,’ we must vacate the sentence * * * unless the
record also contains an unequivocal statement that the defendant's decision to go to
trial was not considered in imposing the sentence.”Id. at ¶ 13, quoting State v. Hobbs,
8th Dist. Cuyahoga No. 81533, 2003–Ohio–4338, ¶ 71. “‘Absent such an unequivocal
statement, the sentence will be reversed and the matter remanded for resentencing.’”
Morris, 2005-Ohio-962 at ¶ 13, quoting Scalf, supra, 126 Ohio App.3d at 621.
{¶27} Appellant here points to no evidence in the record that might indicate his
sentence is retaliation for trying his case. His sentence of 18 months is within the
Stark County, Case No. 2013CA00117 8
statutory range and thus in accordance to law. R.C. 2929.14(A)(4). The sentence does
not constitute an abuse of discretion by the trial court.
{¶28} Appellant’s first assignment of error is overruled.
II.
{¶29} In his second assignment of error, appellant argues his convictions are
against the manifest weight and sufficiency of the evidence. We disagree.
{¶30} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “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.”
{¶31} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
Stark County, Case No. 2013CA00117 9
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶32} Appellant was convicted of one count of domestic violence pursuant to
R.C. 2919.25(A), which states, “No person shall knowingly cause or attempt to cause
physical harm to a family or household member.” He was also convicted of one count
of violation of temporary protection order pursuant to R.C. 2919.27(A)(1), which states,
“No person shall recklessly violate the terms of any of the following: [a] protection order
issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the
Revised Code.”
{¶33} Appellant’s challenges to the manifest weight and sufficiency of the
evidence are based upon his assertions that Riter’s testimony was unreliable and the
police investigation was flawed. We have reviewed the entire record and disagree with
these characterizations; moreover, it is well established determining the credibility of
witnesses in within the province of the trier of fact. See State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The evidence in this case
supports the judgment of the trial court. We also note appellant admitted to violating the
temporary protection order repeatedly.
{¶34} Appellant’s convictions are supported by sufficient evidence and are not
against the manifest weight of the evidence. Appellant’s second assignment of error is
overruled.
Stark County, Case No. 2013CA00117 10
CONCLUSION
{¶35} Appellant’s two assignments of error are overruled and the judgment of
the Stark County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Farmer, J., concur.
State v. Riter
Combined Opinion